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SPEECHES, 



REVIEWS, REPORTS, &c 



BY 



JOSEPH BLUJVT. 



MMES VAN NORDEN & CO., 
No. GO AVilliam-Strkxt. 

1S43. 



CONTENTS 



Pack. 

Discourse before the New- York Historical Society, 1827, 1 

Review of tiie Principles of the Holy Alliance, 29 

Report to American Institute proposing Annual Fairs, C9 

Ars;ument in case of Erastus Root v. Chas. King, &c., 75 

Historical View of the Formation of the American Union, 121 

Review of the Cherokee Question, I'zJ 

Address before the New-York Historical Society, 1839, 151 

Report on Common Roads, 197 

Review of Ivanhoe, 207 

Address of the Home League to the People of the United States, 1842, 223 

Report to the National Convention, 1842, 241 

Lecture on Coal, before the American Institute ' 257 



AN 



ANNIVERSARY DISCOURSE, 



DELIVERED BEFORE THE 



NEW-YORK HISTORICAL SOCIETY, 



ON 



THURSDAY, DECEMBER 13, 1827. 



Mk. President, and Gentlemen of the Historical Society : 

We live in an extraordinary age. It may emphatically be 
denominated an age of improvement. Mechanical inventions, 
scientific discoveries, and advances in political knowledge, are 
daily bringing about great changes in the condition of society : 
and scarcely have we time to contemplate these changes, and 
to speculate concerning their probable effects, ere our antici- 
pations are realized, and our attention is occupied by new im- 
provements, whose results are beyond the grasp of the most 
vivid imagination. 

The community in which we live remarkably exemplifies 
these striking characteristics of the age. It comprehends 
within its bosom many who have seen its day of small begin- 
nings, and who, within their own lives, have witnessed the rapid 
growth of a few provincial dependencies into this powerful 
confederacy. These considerations cannot be overlooked by 
any person familiar with American history ; and, yielding to 
their influence, I propose, in dischai'ge of the duty assigned to 
me by the Historical Society, to review the history of the Eu- 
ropean settlements in America, and their influence upon the 
condition of the civilized world. 

1 



By contemplating the condition of Europe at the time of the 
first migration to this continent ; by reviewing the motives which 
induced its early settlers to leave their native land for a savage 
wilderness; by setting forth the principles by which they were 
governed, and the course of conduct they pursued, we are 
enabled justly to estimate the extent of their sacrifices, the value 
of the inheritance which has been transmitted to us, and the 
nature of our duties towards those who are to follow us. In 
this manner we associate ourselves with those who precede us 
in the march of existence ; we constitute ourselves a part of 
those who give character to a nation ; w'e share in their ad- 
versity and in their prosperity ; we partake of their labours ; 
we rejoice in their success ; we identify ourselves with the 
cause ibr which they suffered, and at once live with our ancestors 
and for our posterity. 

Such a review has important uses. It compels us to reflect 
upon the nature of our institutions, the manner in which they 
have been built up ; and by recurring to their foundations we 
add new strength to the principles by which they are sustained. 
We are animated to fresh exertion in our national career, by 
going back to the original fountains from which American free- 
dom and prosperity have been derived. 

History is experience teaching by example ; but it is not by 
ordinary examples that her wholesome lessons are taught. The 
mean and selfish motives, which so often enter into the induce- 
ments to glorious achievements, are forgotten in the lapse of 
ages. The petty intrigues and personal quarrels which so often 
influence the fate of empires, pass to oblivion with those by 
whom they were fomented ; and the character of the age, 
marked by its prominent moral and intellectual qualities, alone 
remains to animate or to warn succeeding generations. 

The distinctive marks of the period, from which we date the 
commencement of American history, are easily ascertained. 
The obscurity which hangs over the origin of other nations, 
and which aftords ample opportunity for the erection and demo- 
lition of plausible theories, does not darken the period in which 
the European settlements in Americawere established. Science 
and learning shed their full light upon the communities from 



which they migrated. Their motives and actions were exposed 
to the spirit of inquiry which distinguished the age. The pecu- 
liar characteristics of the early colonists are fully detailed and 
faithfully preserved by their contemporaries, and we are not 
left to conjecture for the materials of American history. 

In examining the annals of the settlements now composing 
the North American Confederacy, our attention is not attracted, 
nor a feverish excitement produced, by a series of brilliant 
military achievements. No splendid conquests nor murderous 
battles, in which myriads of the human race were sacrificed, to 
extend a boundary line, or perpetuate a dynasty, enliven the 
matter-of-fact history of the American people. The tinsel 
decorations of martial renown are not the appropriate orna- 
ments of our national annals. They have a more real and solid 
interest. They come down to us adorned with their triumphs ; 
but they are not the triumphs of physical force. They are the 
triumphs of intellect, of liberty, political and religious. They 
are the triumphs of an enlightened policy over the prejudices 
of a scholastic and bigotted age ; of free institutions over the 
abuses of the feudal system ; of the right of conscience over 
persecution; of freedom over despotism and slavery. These 
are victories over which the philanthropist need not moui-n. 
They are debased by no alloy. They are achieved at a com- 
parative small expense of blood and treasure ; but they are 
more valuable to mankind, and more momentous in their con- 
sequences, than all the battles ever gained by all the heroic 
scourges of humanity who have graced the annals of warlike 
achievement. They have a permanent interest, which is con- 
nected with the improvement of our nature and the happiness 
of man ; with the ascendancy of all that is enlightened and free 
and ennoblino;, over what is ignorant and slavish and debasinff. 
We, and all who come after us, participate in such triumphs, 
and are the rightful heirs to their glorious results. The annals 
of the American people are thronged with such victories. From 
their first inception to the present day they form one great pro- 
cession of triumphs. Their whole tendency has been to eman- 
cipate the human mind from the bonds of prejudice, to extend 



and perpetuate the sway of reason, to establish political, religious 
and commercial freedom, all essential parts of one great system, 
upon a firm and permanent basis. 

At the period when America was discovered, the political 
condition of Europe was of the most arbitrary character, and 
the tendency of its civil institutions endangered even the few 
privileges which had been preserved from the grasp of civil and 
religious tyranny. The feudal system had received a fatal blow, 
but its relics incumbered the face of society, and presented the 
most formidable obstacles to the progress of improvement. 
All the absurd doctrines which had taken root during the 
dark ages, and had grown up under the protecting shade of 
monastic superstition, still flourished, and were received as 
established truths. The divine right of a certain race to govern 
a kingdom, was maintained with as much zeal, as if it had been 
a dogma essential to salvation. The infallibility of the head of 
the Papal Church, or the authority of an individual selected by 
a few cardinals, to bind the consciences of his fellows in all 
matters of faith, was still unquestioned. This extraordinary 
authority even extended to temporal affairs, and the monarchs 
of the leading powers were in the habit of availing themselves 
of it as a great political engine. The principles of commerce 
were conformable to the general character of the age ; and the 
efforts of those few rulers who made it an object of attention, 
were directed rather to secure a monopoly, than to extend the 
trade of their kingdoms, by developing their resources, and by 
encouraging domestic industry. It was a sort of predatory 
commerce, instead of a fair and legitimate exchange of the pro- 
ductions of human industry. In short, throughout Christendom, 
the religious feeling was intolerant, the political system despotic, 
and the commercial policy narrow and monopolizing. 

The first tendency of this state of things was to reduce the 
newly discovered world to the most abject condition. Accord- 
ing to the established code of publiclaw, the American continent, 
with its inhabitants, became the property of the monarchs whose 
subjects discovered it. Alexander VI., who then filled the Papal 
chair, arrogating to himself, as Christ's vicegerent, the right of 



disposing of all heathen countries, divided the new discoveries 
between the crowns of Spain and Portugal, and these powers 
intimed lately began to extend their sway over the western 
hemisphere. The adventurous soldiers and mariners of those 
nations, then in the zenith of their power, soon reduced the 
numerous but timid aborigines to subjection ; and measures 
were at once adopted to render the wealth and resources of the 
new possessions available to the European governments. These 
measures are too faithfully related by some of the companions 
of those adventurers, whose hearts were not wholly closed to 
the appeals of suffering humanity. The predominant feeling of 
the Christian world is there fully developed in action ; and 
bigotry, stimulated by avarice, is seen exciting the followers of 
Cortez and Pizarro, to indiscriminate plunder and massacre of 
a race, whose peaceful and inoffensive habits offered the most 
powerful plea in their behalf, and whose undeserved fate has 
excited almost a general regret, that their country was ever 
exposed to the enterprise and cupidity of Europe. Even sub- 
mission on the part of the natives caused no alleviation of their 
sufferings. Doomed to labour in the mines for gold, to satisfy 
the insatiable avarice of their conquerors, they found reason to 
envy the fate of their more fortunate countrymen, who had fallen 
in battle. If these acts of inhumanity had been unauthorized, 
we might have ascribed them to individual depravity; but 
unfortunately they are essential parts of the system adopted 
towards America, and the legitimate lesults of principles 
preached from the pulpit and practised by the sovereigns of the 
age. The discussions between Las Casas and Sepulveda, 
whether the natives of the new world became the subjects of 
the Spanish crown, or the private property of the conquerors, 
show the small estimation in which American rights were held 
by European casuists. At the present day, public opinion could 
not tolerate the id&a, that a people might be reduced to slavery* 
and their property seized by the conquerors, solely because 
they were of another religious faith; but according to the rea. 
soning of that age, the inhabitants of heathen countries were 
destitute of civil and natural rights. Religious intolerance 



6 

erected itself into an infallible tribunal, and adjudged their 
claims " to life, liberty and the pursuit of happiness," to be un- 
supported by Gospel or reason. The same anti-social prin- 
ciple — a principle which sprung from the union of scholastic 
philosophy and Gothic ignorance — soon became ascendant in 
politics as well as religion, and the doctrine of perpetual and 
unalienable allegiance was now introduced, to secure tlie 
dependency of the European settlements in America, and to 
reduce their inhabitants to the political levej of aborigines. 
The right of kings to rule was no longer earned by services in 
the cabinet or field, but was maintained as depending upon 
religious faith. The doctrine wliich now infests Europe under 
the appellation of legitimacy, and is vindicated under the pre- 
tence of upholding civil order, then existed as a divine right, 
which could not be questioned without offending the Deity ; 
and the ominous ruin of church and state, in which religious 
intolerance and civil tyranny are leagued to sustain each other 
by alternate appeals to spiritual hopes and human fears, threat- 
ened to extend its sway over both worlds, and to deprive the 
objects of its vengeance of all earthly asylum. 

If the claim of the Spanish crown to the whole western con- 
tinent had been unquestioned, its condition at this time would 
probably have resembled that from which her colonies have so 
recently emancipated themselves. It is impossible to estimate 
with accuracy the effect, which the establishment of that claim 
to this hemisphere would have produced upon the happiness 
and freedom of mankind ; but the injuries inflicted by the 
blighting policy of that court upon all territories subjected to 
its authority, entitle us to presume, that it would have caused 
results equally extensive and destructive to the best interests of 
humanity. 

Fortunately, however, for the cause of truth ; fortunately for 
mankind, the northern parts of America were claimed by other 
European powers, and, as they did not offer the same tempta- 
tions to Spanish cupidity, these claims in time acquired a valid 
character. Neither the climate nor soil allured the first Ame- 
rican adventurers to these shores. Avarice could not be easily 



gratified by the productions of North America, nor could wealth 
be acquired without labour, by those who established them- 
selves tliere as colonists. The consequence of this happy 
poverty w'as, that the colonists were not men of desperate for- 
tunes and desperate characters, seeking by violence wealth, to 
squander in the accustomed haunts of vice at home. They 
were men migrating here to found a nation. They were seek- 
ing here a permanent country, and to build up institutions for 
themselves and their children. 

It is still more fortunate, that whilst these causes preserved 
the Northern continent from the grasp of Spain, and prevented 
any premature settlements there, the spirit of reform was 
actively at work in Europe, and tlio collision between those 
who sustained the ancient superstitions, and those who waged 
war upon them, was preparing fit materials for the population 
of the transatlantic republics. Persecution and violence on 
the part of the dominant party, was furnishing colonies for 
America from among the intrepid, the conscientious, and the 
pure minded. Those who valued truth, religious faith, and a 
peaceful conscience above all else, were thus driven into the 
ranks of the American settlers. 

The reformation which commenced shortly after the dis- 
covery of this continent, had now fully awakened the public 
mind in Europe. The first reformers were private individuals, 
unsupported by a party, and only sustained by their unextin- 
guisliablc enthusiasm and confidence in a good cause. Their 
first partisans were drawn from the poor, the humble, the 
oppressed ; from among those, who not being interested in 
perpetuating old abuses and deriving no authority from them, 
added no weight to the side they adopted, except the moral 
power of tlieir disinterested testimony. They brought no 
armies, no overflowing coffers, no bands of feudal dependants, 
to the cause they espoused. Their whole strength was a 
moral force ; but that lever rested upon public opinion, and 
the ancient order of things was shaken and overthrown by its 
omnipotent action. Men began to examine for themselves in 
. matters, before that time regarded as beyond the reach of 



8 

investigation. A spirit of inquiry pervaded society, and the 
test of an awakened reason was applied to the claims of the 
existing religious establisinnenls. The monarchs who then 
governed the great European kingdoms, were not slow in 
perceiving, that the surest foundations of their thrones were 
immediately connected with the superstitions of the Church. 
They accordingly took measures to enforce its denunciations 
against such dangerous opinions, and Europe soon beheld her 
sovereigns combinintj; to sustain a religious establishment, that 
in the plenitude of its power had compelled the proudest 
monarchs to descend from their thrones, and kneel as suppliants 
at the feet of imperial Rome. 

Political considerations induced some to swerve from this 
course; but from -the commencement of the Reformation, in 
1520, until the settlement of Plymouth just a century after- 
wards by a few English non-conformists, the European govern- 
ments manifested ihe most intolerant and persecuting spirit 
towards all their subjects who assumed the liberty of thinking 
for themselves in matters of faith. 

In Germany, where the Reformation broke out, a furious 
contest was carried on for more than a century between the 
Catholics and Protestants, and the surrounding powers were 
often involved in the war as allies or abiters. The treaty of 
Westphalia, in 1G48, gave them both peace and religious tole- 
ration ; but before that pacification it seemed as if the fiends 
of darkness had been let loose to carry on the quarrels of the 
Church. It is true, that in this portion of Europe the reforming 
party maintained itself, and brought the conflict to a successful 
result ; but this success was purchased by the most painful 
sacrifices. Their religious freedom was maintained by unre- 
mitting efforts l)oth in the cabinet and in the field. It was 
guarded by a sword constantly unsheathed. So far from 
being able to offer an asylum to others, they were themselves 
reduced to the extremity of distress, and were often indebted 
for their preservation to combinations of circumstances almost 
miraculous. It was not in a country thus afflicted and overrun 
by contending armies, which, from the length of the contest, 



9 

degenerated into mercenary bands, ready to enlist under the 
most celebrated leader — seeking wars as their proper employ- 
ment, and plunder for their reward ; that Christians, who 
longed for peaceful toleration, could find the object of their 
desires. 

The other kingdoms of Europe presented similar scenes of 
confusion and anarchy. The Netherlands were distracted by 
a rebellion, which was provoked by the impolitic and unrelent- 
ing severity of the Spanish Court, and terminated in their 
separation from Spain. This rebellion or civil war grew out 
of religious intolerance, and continued nearly eighty years, 
wasting the strength and treasures of Spain in fruitless 
attempts to reduce the United Provinces to submission, and 
destroying their security and happiness during this protracted 
contest. 

The contemporaneous history of France does not afford a 
more favourable account of the tranquillity of that powerful 
kingdom. The infamous massacre of St. Bartholomew, planned 
and executed by the court, indicates the spirit in which the 
religious contest was carried on ; while the wars of the 3d 
and 4th Henrys against their own subjects ; the numerous 
towns, computed at more than four hundred, destroyed by the 
contending sects, and the distrust constantly evinced when- 
ever the leaders met in times of hollow truce, all manifest the 
wide extent of the religious feud, and the deeply rooted 
rancour harboured towards the Protestants by the dominant 
party. Scotland and England were governed upon the same 
intolerant principles. 

All Europe was vexed by religious warfare. The quarrels 
and persecutions of ambitious monarchs and intolerant priests, 
had wearied the patience of their long-suffering subjects, and 
they wishfully cast their longing eyes in search of an asylum in 
that newly-discovered continent beyondthe western ocean. The 
accounts of a new world teeming with plenty and bringing forth 
spontaneous productions under ever-sunny skies, were now in 
all men's mouths, and were eagerly listened to by the persecu- 
ted — despairing Protestants. It seemed as if, in the moment of 

2 



10 

deepest distress, that their desponding hearts were cheered by 
the suggestions of some angel-spirit, that beyond the waste of 
waters which had confined the human race to the old conti- 
nent, to suffer all that humanity could endure, or tyrants inflict, 
there was another and a better world. The followers and com- 
panions of Du Plessis and Coligny in France ; of Barnevelt and 
Grotius in Holland ; of Hampden and Milton in England, all 
looked to America as an asylum. 

It was from this class — this dissenting — persecuted minority, 
that the ancestors of the American people were drawn ; and it 
was owing to the universality of this feeling among them, that 
the tide of emigration swelled so rapidly when it began.to flow. 
Whilst the eastern colonies were settled by the English Puritans, 
the adjacent provinces offered a similar shelter to the Hugenots, 
and the Dutch and German Reformers. This description of 
population gave a sobriety of purpose and a religious character 
to the whole colonies, and prevented the southern settlements 
from degenerating into mere trading establishments. 

It also enforced the necessity of a tolerating spirit. Our 
English ancestors were not only Protestants in religion, but they 
were Dissenters from the political faith of their countrymen. 
In their struggles against the religious supremacy of the crown, 
they often questioned its temporal authority. They felt a yearn- 
ing for the dawn of that day of civil freedom, which their de- 
scendants now enjoy. They were in fact the vanguard of that 
stern, austere band of Presbyterians, who in the next generation 
established the commonwealth upon the ruins of the monarchy, 
and brought their misguided sovereign to the scaffold for offences 
against the people of England. They had not, it is true, such 
well-grounded ideas of civil freedom, as are now prevalent. They 
were not born under a written constitution ; nor had they grown 
up under a free and well-balanced government ; but they had 
been taught the value of freedom in the school of persecution. 
The cruel tyranny which had driven them from their own 
country ; the hardships and privations they had undergone in 
establishing themselves here, were all so many testimonials 
against an arbitrary government, and unanswerable proofs in 
favour of the nghti of maii. 



11 

In the lapse of a few years, the feelings which were natu- 
rally entertained against the particular sects, by whom the first 
settlers had been exiled, were modified. Succeeding genera- 
tions became heirs only to the strong dislike against tyranny in 
general ; and the want of rich religious endowments, by depri- 
ving theological teachers of all temporal motives to persecution, 
took away the chief cause of religious intolerance. Accord- 
ingly, when the mother country undertook to straighten the 
bonds of government and to reduce the colonies to uncon- 
ditional submission, we find them overlooking minor points of 
difference, in order to preserve their political freedom. The 
Catholics of Maryland, the Episcopalians of New- York and 
Virginia, the Hugenots of Carolina, and the descendants of the 
German and Dutch reformers, who were planted in several 
parts of the Union, joined with the Puritans of New-England 
in opposing the usurpations of Great Britain. They all felt 
that unless their resistance was successful, both civil and re- 
ligious freedom would be at the discretion of the British ministry, 
and, in the presence of the common foe, they buried their theo- 
logical diffei'ences. As they had purchased their religious free- 
dom by relinquishing their homes and kindred, they now made 
a sacrifice of sectarian prejudices upon the shrine of civil 
liberty and national independence, and religious toleration vv^as 
thus made the key-stone of the American Union. But though 
it is a fortunate circumstance that the dissenters of other nations 
made settlements in this country, there is no reason to regret 
that the chief provinces, which materially influenced the cha- 
racter of the v»'hole, were settled by English non-conformists. 

The country from which they came, though far from furnish- 
ing a perfect model for a free government, was infinitely supe- 
rior in that particular to any then existing in Europe ; and from 
its arbitrary features and the despotic principles of its ruling 
monarch, this sect had uniformly dissented. It is not, however, 
by their partiality for free institutions alone, that the English 
Puritans were peculiarly fitted to become the founders of a 
great nation. The qualities and principles which distinguished 
this extraordinary sect are well woi'thy of a chief place among 



12 

the circumstances which formed the character and controlled 
the destiny of the American people. The Puritans not only 
rejected the creed of the Catholic Church, but they had sepa- 
rated from the Protestant Church, because in their judgment it 
was still tainted with Romish superstitions. They aimed at a 
more thorough reformation, and to bring their chosen flock back 
to the primitive simplicity of the apostohc age. Their system 
of faith was one of self-denial, humiliation and prayer. It 
rendered every passion subservient to a vehement desire of 
knowing and executing the will of Providence. All temporal 
motives, ambition, avarice, self-love, all were swallowed up in 
this one absorbing feeling. Earthly riches they regarded as 
dross. Their hearts were fixed on that spiritual wealth, which 
the meanest member of the congregation claimed as his inheri- 
tance. Human honours they despised, as transitory and de- 
pendent upon the breath of man. They were heirs to immortal 
crowns, and celestial thrones and eternal honours awaited them, 
when they were released from the bonds of flesh. For this 
they relinquished all those objects which the mass of mankind 
pursue with such ardour, and became the tenants of a prison, 
the victims of the Star-Chamber, and the subjects of persecution 
and exile. 

Dangers could not deter such men ; for death they welcomed 
as a translation to the realms of bliss. Titles and honours 
could not seduce ; for their imaginations were beyond the reach 
of temporal motives. In their paroxysms of religious enthusi- 
asm, in their gloomy fits of humiliation and despair, they seemed 
subjects for pity and commiseration ; but when these mental, 
clouds had passed, they came to the business of life with an 
intensity of purpose, and a thorough devoti'on of every physical 
and mental faculty, which triumphed over difficulty and trampled 
every obstacle under foot. This state of religious exaltation 
proved an admirable support in all parts of their trying career. 
It enabled them to continue their course with unfaltering step, 
when men under the influence of ordinary motives would have 
turned back in despair. It sustained them in their cruel perse- 
cution at home ; in the solemn moment of parting from their 



13 

native land ; in their long and dangerous voyage on the Atlantic ; 
in their many trials in the American wilderness ; and in the 
gloomy hour when the storm of ministerial wrath, which had 
been so long gathering, burst on their defenceless settlements. 
In all these trials they acted like men whose destinies were 
under the special superintendence of an overruling Providence. 
The claims of their friends and kindred were in vain presented 
to their minds. Their hearts yearned towards those objects of 
affection and the pleasant places of their childhood ; but reli- 
gious duty forbade them to submit to the commands of an arbi- 
trary government, and they turned their backs upon their native 
country, with a fixed determination never to return. 

A stormy ocean in vain arrayed itself in unusual terrors. 
Their little bark was laden with a greater burden than Caesar 
and his fortunes. It bore the founders of a mighty republic. 
In their own estimation, it contained the chosen church, and 
they felt as if under the special protection of heaven. The 
ocean, which presented such obstacles to their escape, would 
preserve them from the corruptions of the old world. It placed 
them beyond the influence of countries grown old in abuses. 
A bleak and barren shore awaited them upon their arrival ; but 
there they were free from ecclesiastical persecution and political 
tyranny. They were freed from the mischievous example of 
institutions vicious in principle, and were at liberty to establish 
a social community, whose members were far advanced in 
civilization upon a broad and natural basis. 

With these views, upon their landing, they entered into a 
social written compact, the first the world ever saw, by which 
it was agreed, that the common will should be the law of the 
colony. They then chose agovernor from among themselves, and 
established their republican government far from the debasing 
influence of Europe, without the sanction of a charter or grant 
under any royal seal, in the midst of the untouched forest, with 
the canopy of heaven for a covei'ing, and the waves of the 
Atlantic rolling between them and the abodes of civilized man. 

Under such circumstances was the first English colony planted, 
which possessed the power of sustaining itself; and to the hard- 



14 

ships which its founders endured, and to the principles by which 
they were actuated, may be attributed the fearless and uncom- 
promising spirit of the colonists. They were always prompt to 
oppose the pretensions of England, and when force was re- 
sorted to, they were found as ready to play their part in the 
field as in the halls of debate. 

Another circumstance growing out of the religious feelings, 
which entered so largely into the inducement to American colo- 
nization, had an important influence upon^the institutions of the 
new colony. Its founders were surrounded by their families, and 
among the moral causes which contributed to its stability and 
prosperity, we cannot assign too high a rank to the example of 
those devoted women, who left the comforts to which they had 
been accustomed for the sake of their persecuted friends, and 
to sustain and cheer them amid their dangers and privations. 
It was no inconsiderable cause of the success of this settlement, 
that it was established upon the permanent foundation of do- 
mestic happiness ; and that its founders felt, as husbands and 
fathers, solicitous for the moral and religious education of the 
rising generation. Their views extended to posterity. They 
were religious and educated themselves, and they intended that 
their descendants should be so too. Actuated by these motives, 
they made provision, shortly after their landing, for teaching the 
gospel and for the education of the children in the colony. 
The noble system of common schools, to which the eastern 
states are indebted for no small share of their reputation and 
happiness, and which is so fast spreading through the country, 
dispelling ignorance and preparing the rising generation for the 
proper administration of our excellent institutions, is a lasting 
-monument of their wisdom, and will long remind their country- 
men of the sagacity of the fathers of New-England. 

These remarks, illustrating the forecast of the eastern colo- 
nists, are equally applicable to the manner in which the founders 
of the British colonies, in general, framed their political institu- 
tions. It is true, that in some of the provinces they were in- 
duced by different motives to migrate to this continent ; but 
they all considered these wilds as their permanent homes. 



15 

The North American settlements were not hke the colonies 
of Greece and Rome, mere extensions of the parent states to 
contiguous territories ; nor migrations to countries inhabited by- 
people as much advanced as themselves in civilization. They 
were the commencement of new communities in a new world. 
Neither did they resemble the European settlements in the East 
and West Indies. These w^ere commercial establishments, and 
the adventurers always looked with impatience for a return to 
their own country, with fortunes accumulated abroad as the 
reward of their industry and privations. The colony was re- 
garded as a place of banishment, and they sought rather to 
carry away wealth, than to confer any lasting benefit upon the 
place of their temporary abode. These views essentially mo- 
dified their policy and conduct. So long as they were per- 
mitted to pursue without interruption their schemes of gain, 
they took no interest in the welfare of the colony. Its legislation 
might be impolitic, its privileges invaded, its vital interests ne- 
glected ; but while they considered themselves merely as 
sojourners, they did not feel called upon to make personal sacri- 
fices, in order to vindicate its political rights. 

Not so with the settlers of the North American colonies. 
They had turned their backs upon Europe for ever, from motives 
v*hich were not hable to be changed by the lapse of time. 
Their migration was the permanent adoption of another country. 
It was colonizing upon an original footing. The colonists were 
intelligent, educated and civilized. They had been taught by 
bitter, by personal experience, that the political institutions they 
liad fled from were not fitted to promote the freedom or happi- 
ness of the mass of the community. They had no inducements 
to copy the frame of their government from those, which at 
home were overgrown with the abuses of antiquity. Privileged 
orders had no charms for them. They were all equal in rank, 
in sufferings and in sacrifices. They were not compelled, from 
their relations with those around them, to erect a feudal system 
or a magnificent hierarchy in the American wilderness. All 
this was indissolubly connected in their minds with imprison- 
ment, persecution and exile. 



16 

But they were placed here in a productive country, where a 
virgin soil offered its treasures to their industry ; with all the 
arts of" civilization to aid them ; possessing all the experience, 
which the failures in government for four thousand years could 
teach, and free from the motives and interests that have planted 
the principle of corruption and decay in the foundation of other 
governments. In the vigour of youth, and unshackled by pre- 
judice, they commenced their course from the goal, which other 
nations had attained after centuries of exertion. Well were 
these things characterized by a statesman,* whose eloquence is 
the ornament of his country, as the " happy auspices of a happy 
futurity ! Who would wish that his country's existence had 
otherwise begun! Who would desire the povv'er of going back 
to the ages of fable ! Who would wish for an origin obscured 
in the darkness of antiquity ! Who would wish for other em- 
blazoning of his country's heraldry, or other ornaments of her 
genealogy, than to be able to say, that her first existence was 
with intelligence ; her first breath the inspirations of liberty ; 
her first principle the truth of divine religion !" 

Under the operation of these causes, the colonies grew with 
unexampled rapidity. Before the close of a century, a native 
population of European origin, exceeding half a million, had 
established themselves on the eastern shores of North America. 
The colonies now began to attract the particular attention of 
the mother country, and its parental care was displayed in pro- 
jecting measures to appropriate their resources to its own use, 
and so to modify their governments as to prevent any effectual 
opposition to this ungenerous design. 

A course of reasoning similar to that which had deprived the 
aborigines of all natural rights, and appropriated their wealth 
to European use, now threatened to reduce the colonists to an 
inferior and dependent condition, and to monopolize their trade 
and resources. The lapse of a few years had made the inhabi- 
tants of the old world forget, that the colonists and themselves 
had a common origin ; and they began to regard them as if 

* Mr. Webster's Oration at Plymouth, Dec. 22, 1820. 



17 

they had lost their cast by taking up their abode in a continent, 
which, in their minds, was associated with all that is unculti- 
vated, ignorant and barbarous. While these natural associations 
depressed the colonists in the public esteem, the European 
monarchs were urging their claims to political sovereignty, upon 
the ground that their subjects could not expatriate themselves. 
The duty which a citizen owes to the community in which he 
lives, and by whose laws he is protected from unjust violence, 
was perverted into the doctrine of perpetual and unalienable 
allegiance, and this principle was made the corner-stone of the 
colonial system. In establishing this system the European go- 
vernments had in view a two-fold object. The first was national, 
and was intimately connected with the extension of their trade, 
and the other political. This latter aimed at the complete con- 
trol of the colonies, and to govern them by officers appointed 
in Europe. A rich harvest was thus furnished for the depend- 
ents upon the court, and the American colonies became the 
receptacle for the decayed servants of the crown. 

The maxims of European policy towards America are few 
and comprehensive. They consisted in rendering the colony 
entirely subservient to the interests of the mother country ; in 
monopolizing its commerce, and in retarding its progress 
towards improvement, in order the more effectually to prolong 
its dependence. All foreign trade was prohibited to encourage 
the navigation of the mother country ; and all intercourse with 
the colonial possessions of other nations was forbidden, lest these 
commercial regulations should be evaded. In order to protect 
home industry, laws were enacted discouraging manufactures 
in the colonies ; and the raw materials produced there were 
sent to the ports of the parent kingdom, to be thence distributed 
to other nations, or to be manufactured for the use of the colo- 
nists. Scarcely had they shaken off" the bonds of religious in- 
tolerance, ere the desire of gain sought to bind down the Ame- 
rican continent, their place of refuge, in the chains of commer- 
cial monopoly, and to render it a mere dependency upon Europe. 
The communities which were established here were not only 
deprived of all transatlantic trade, but of that intercourse with 

3 



18 

contiguous countries which was so much more necessary to their 
comfort and prosperity. They were not only prevented from 
directing their industry to those employments which would best 
repay their labour; and from trading with those countries 
which furnished the cheapest supplies and afforded the best 
market ; but by a rigorous application of the system to the 
whole continent, they were shut out of the pale of improvement, 
deprived of the stimulus, which a spirit of emulation among 
adjacent communities imparts in the pursuit of knowledge, and 
doomed to labour in an insulated colony for the prosperity of a 
transatlantic power, that rewarded their industry by monopo- 
lizing its profits, and repaid their faithful allegiance by obstruct- 
ing them in their progress to civilization. 

A system so inherently unjust necessarily provoked oppo- 
sition on the part of the inhabitants of the British Provinces in 
North America ; and a series of measures adopted by the 
mother country to carry it into effect, prepared the way for 
the success of another essential part of the American system. 

The principles by which the colonists were actuated, were 
entirely at variance with colonial dependence. They were 
indeed compelled, after many violent struggles, to partially sub- 
mit to the navigation acts ; but even this qualified dependence 
was the cause of continual disputes, and to all pretensions to 
political supremacy, they offered the most determined resist- 
ance. 

It is worthy of remark, that in the British United American 
Provinces, representative governments of a popular character 
were established previous to the British revolution. In the 
proprietary colonies of Maryland, Pennsylvania, Carolina and 
New-Jersey, the political institutions were originally formed 
upon enlarged views of civil freedom. In Virginia a house of 
Burgesses was suddenly introduced by the colonists into their 
frame of government, without any authority from home, and 
very much against the wishes of the directors of the company. 
The original settlers of our own state were emigrants from 
Holland in the best period of her existence, when that republic 
was invigorated with the spirit of new-born hberty. We 



19 

accordingly find them, shortly after the transfer of the colony 
to the British crown, contending for the privilege of self- 
government, and compelling the Duke of York, who was the 
proprietor, to acquiesce in that characteristic right of an 
American community. The governments of the eastern pro- 
vinces were essentially democratic, and it may be safely 
asserted that the public will was early manifested in the acts of 
all the colonial governments. In consequence of the popular 
form of their political institutions, their opposition to the pre- 
tensions of the mother country assumed an official shape. It 
was not the hasty ebullition of individual feeling, unauthorized 
and unsupported, but the result of deliberation, and evinced a 
widely extended discontent. It could not be punished as the 
misconduct of a few riotous persons, but must be treated as the 
premeditated act of the whole community. 

The many instances of insubordination and disobedience in 
America, which are so much complained of by the English 
historians, are so many testimonies in behalf of the fearless 
spirit of the colonists, and show the insecure tenure of royal 
authority over them. It was never their intention to be con- 
trolled by a government on the other side of the Atlantic. 
They maintained, in the technical language of the time, "that 
the laws of England were bounded by the four seas, and did 
not reach America." The General Court of Massachusetts 
made this answer to a charge against that colony, of having 
disobeyed the navigation acts ; and on another memorable occa- 
sion, upon information that a general government had been pro- 
jected for all colonies, the magistrates and clergy of that province 
unanimously resolved, " that if such governor were sent, the colo- 
ny ought not to receive him, but to defend its lawful possessions.'' 

The limits of this discourse will not permit an enumeration 
of the many acts of resistance offered by the inhabitants of the 
other provinces, to the colonial system of Great Britain, long 
before those difficulties, which immediately preceded the Revo- 
lution ; but I may be allowed to refer with pride and exultation 
to the testimony borne by Chalmers, the official historian of the 
British government, to their refractory spirit of independence. 



2& 

" The Americans," says this writer, " have had all along a 
reluctance to order and good government, since their first estab- 
lishment in their country. They have been obstinate, undutiful 
and ungovernable from the very beginning ; from their first 
infant settlements in that country. They began to manifest 
this spirit as early as the reign of Charles the First, and disputed 
our right of fishing on their coasts in the times of the Common- 
wrealth and the Protectorate." 

In these conflicting principles and views, may be distinctly 
traced the causes of the Revolution. It was impossible, in the 
nature of things, that communities with such opposing intei'ests 
and claims ; governed upon such different maxims ; and so se- 
vered by distance and sentiment, should long continue to ac- 
knowledge a common authority. The voice of nature had de- 
creed the independence of the United States, long before the 
Continental Congress resolved to vindicate that independence 
by arms. 

The expulsion of the French from Canada soon brought the 
pretensions of England and her colonies into direct collision. 
Whilst France held that dangerous position in the'' interior, and 
stood ready to assist the colonies in case of difficulty, Great 
Britain was unwilling to add to the causes of discontent. But 
after the conquest of Canada, and its cession at the peace of 
1763, that obstacle being removed, a more systematic policy 
was adopted to strengthen the bonds of colonial dependence. 
The complete subjection of the colonies was to be secured by 
means of an army stationed in America, and maintained at their 
expense. The taxes to be raised, were not, however, to be at 
the control of the local assemblies, lest in time they might con- 
trol the army ; but were to be laid and collected by the autho- 
rity of Parliament. It was also contemplated to render the ex- 
ecutive and judicial departments of the American governments 
wholly dependent upon the British Ministry ; to divide the colo- 
nies into provinces of more convenient size ; and to new model 
the colonial department. In order the more effectuallyto exe- 
cute this arbitrary design, all settlements in the interior were 



21 

prohibited, with the view of keeping the civihzed population 
more within the reach of the trade and power of the mother 
country. 

This indication of the arbitrary disposition of the British go- 
vernment, and its manifest determination to reduce the colonists 
to unconditional submission, united them as one nation in oppo- 
sition to its authority. The spirit of the people was roused to 
open resistance. They appealed to the sword to sever the bond 
of union between England and her colonies, and a power inde- 
pendent of Europe arose on this side of the Atlantic. 

The feelings and principles of the civilized inhabitants of 
America were now represented by an independent government, 
and embodied themselves in a course of national policy. This 
remarkable event, which, when justly considered, will not yield 
in interest and importance to any that ever engaged the atten- 
tion of historians, soon caused a material modification in the 
colonial system. 

The statesmen of Europe were no longer at liberty to regulate 
the affairs of America solely with reference to European inte- 
rests. American interests were urged upon their attention, and 
were ably sustained by an American government. It is true, that 
these claims were not readily allowed. Europeans could not at 
once bring themselves to regard an American state as entirely 
independent, and of equal rank with the ancient kingdoms of the 
old world. The court of France considered our independence 
to be but little more than a transfer of allegiance ; and her in- 
cessant efforts to obtain an undue influence in our public coun- 
cils, evince her desire to render us partially dependent upon her- 
self. The other governments of Europe, with the exception of 
Sweden, were influenced by similar prejudices respecting the 
communities on this side of the Atlantic, and refused to acknow- 
ledge an independence, which was already achieved, until the 
course of events rendered the acknowledgment of little impor- 
tance. Their pretensions and principles with regard to the 
inferiority of the western continent, had been engrafted by the 
practice of nearly three centuries upon the law of nations. 



22 

The rivers which constituted our boundaries, had been shu4 
from immemorial time by the jealousy of the powers, to whom 
they belonged, before they became boundary lines. The fishe- 
ries on the Grand Bank had been always enjoyed by the subjects 
of some European government, and participation in them had 
been regulated by various treaty stipulations. All access to the 
islands in the American seas was debarred by a rigorous colo- 
nial system, and the vast territories which were still dependent 
upon Europe, and comprehended far the greatest portion of 
the continent, were subjected to the same strict monopoly. 

Besides these obstacles, which were presented by European 
pretensions to the enjoyment of our independence, there were 
others growing out of popular prejudices ; the condition of the 
country and the character of the system from which it had just 
been emancipated. Among these we need only enumerate the 
state of manufactures and the mechanic arts ; the estimation in 
which domestic productions were held, and the means of internal 
intercourse at the close of the Revolutionary War, to show how 
dependent we were upon Europe ; and by recurring to the re- 
gulations of the British government repressing colonial manu- 
factures, and to her jealousy of all intercommunication between 
the different provinces, we discover the cause of that depen- 
dence and the means of remedying the evil. 

The sagacious men who established the American confede- 
racy, and reconciled the discordant interests of its different mem- 
bers under one government, perceived that our independence 
even then was but partially achieved, and planned a system of 
policy, well designed to complete the emancipation of this country 
from all its colonial burdens. The religious liberty, for the sake 
of which their ancestors came to America, was secured under 
a free and tolerant government, and made the cementing prin- 
ciple of our union. Political independence had been obtained 
after a severe struggle, and our right of self-government formally 
admitted. Commercial freedom alone was wanting. Whilst 
our intercourse with the rest of America depended upon the 
permission of the governments of Europe and American com- 
merce was shackled by colonial regulations, our independence 



23 

was incomplete. Free trade, therefore, became necessary to 
the full enjoyment of our rights as a nation. This constituted 
an essential part of the American system, and the efforts of the 
government were directed to its accomplishment. 

Most of its foreign and domestic policy has had in view the 
establishment of this principle. The Federal Constitution origi- 
nated in the desire to free the trade of the United States from 
the embarrassments to which it was still subjected by the colo- 
nial policy of Europe. The war with France and the late war 
with Great Britain, grew out of the conflicting principles ofthe 
commercial systems of America and Europe ; and the influence 
of this great and important maxim of free trade as promulgated 
by the government of the United States, may be easily seen in 
every part of their history. It may well be called a great and 
important principle. It comprehends within its scope, not only 
the freedom of the trade of the United States, but the entire 
emancipation ofthe rest ofthe continent from the colonial system, 
and the establishment of a new commercial policy, founded upon 
principles of equality and exact reciprocity. 

The system of reciprocity in trade, which was so early adopt- 
ed by this country, was with the view of promoting its success. 
The government instantly perceived the importance of an un- 
shackled commerce, and wisely determined not to sacrifice the 
essential interests ofthe country for any present advantage ; but 
rather to submit to temporary inconvenience, for the sake of 
permanent benefits. The reciprocal policy is one of self-denial, 
but it has great and lasting results in view. It aims at abolishing 
the monopolizing system ; at emancipating all colonies ; at com- 
pelling each community to bear its own fiscal burdens ; and at 
the abrogation of those rules of international law, which have 
grown out of the colonial system of Europe. 

As one ofthe indispensable means of success, and to diminish 
the sacrifices which are the price of its ascendancy, it inculcates 
the necessity of internal improvement. Not merely the im- 
provement of the channels of internal intercourse ; though these 
are of no small importance in enabling diflerent portions of the 
Union to supply their relative wants: but the developement 



24 

of our resources, advancement in science and knowledge, the 
encouragement of manufactures at home, and the naturalization 
of all those arts and institutions, which distinguish a civilized 
from a barbarous community. . 

The natural state of trade, which consists in a free exchange 
of commodities, unburdened by imposts and duties, was not 
applicable to the condition of a country just emerging from 
colonial dependence. The inhabitants of the American colo- 
nies had not been permitted to apply their industry to such 
employments as would best repay their labour. By commercial 
regulations and colonial restrictions, they had been confined to 
those which tended to increase the navigation, and gave employ- 
ment to the home industry of the mother country. This arti- 
ficial state of things interposed great obstacles to the entrance 
of an American state into the great mart of nations. She was 
obliged to contend for her claims to commercial equality, long 
after her right to political equality had been formally admitted ; 
and in this latter contest she could only resort to the comparatively 
inefficient arms of legislative enactment. After the adoption of 
the federal constitution had placed these weapons in the hands 
of the general government, they were effectually employed by 
the revenue acts of the first congress. 

These laws were formed upon the great principles of recipro- 
city, always keeping in view the necessities of the public treasu- 
ry — the state of all domestic manufactures, and the ability of the 
nation to supply itself with articles of prime necessity. These 
considerations were wisely permitted to modify the reciprocal 
system, which, if carried out in its full extent, would have bur- 
dened the staple commodities of each and every country with 
similar duties, to those imposed by the revenue laws of those 
nations upon the staple productions of the United States. It 
was, however, adopted so far as the circumstances of the coun- 
try permitted, and was particularly applied to the navigating 
interests, upon which the old colonial system had most severely 
borne. 

Such was the policy which the circumstances of the country 
forced upon the government of tho United States. It was hos- 



2 



c 



tile to the system of Europe, and of course it has encountered a 
constant opposition from that quarter. The European govern- 
ments have opposed it by intrigue, sometimes by force. Fo- 
reign interests always, and sometimes the prejudices of our own 
countrymen, have interposed obstacles to its success. 

It is not the least, among the evils of a state of dependence, 
that it renders its subjects unfit for the full enjoyment of the ad- 
vantages proceeding from a change in their condition. Their 
habitual mode of thinking, influences them after they have sha- 
ken off their bonds. Their movements still indicate, that they 
were brought up in shackles, and that the iron chains of depen- 
dence have sunk deep into their souls. To this state of feeling 
may be ascribed the difiiculty which exists in eradicating the 
prejudices, that keep all colonists in a condition of habitual de- 
pendence, after their political connection with the mother country 
has been dissolved. 

The statesmen of Europe were not ignorant of this prejudice, 
and they endeavoured to avail themselves of it, in establishing 
their commercial relations with the new republics. Shortly 
after the close of the Revolutionary War, the celebrated Brissolt 
wrote a work to persuade the world, that it would be unwise in 
us to manufacture or produce any thing, that was produced or 
manufactured in France. The famous work of Lord Sheffield, 
which produced such a decisive effect upon public opinion in 
England, and prevented the passage of a law brought forward 
by Mr. Pitt in 1783, to place our intercourse upon an equal and 
liberal footing, teaches the same doctrine with regard to British 
manufactures. It inculcates the principle, that the United 
States are essentially dependent upon Europe, and that by judi- 
cious commercial regulations, the same monopoly of their carry- 
ing trade, and the same advantages in their commerce, may be 
obtained as existed before their separation from Great Britain. 

This work was unfortunatelv made the test-book of the British 
government, in all its commercial arrangements with this country, 
and has proved an abundant source of diiiiculties. It aims to 
secure to England a monopoly of American commerce, and es- 
pecially oflhe carrying trade between the two countries. Having 

4 



26 

relinquished the power of directly effecting that object, it now 
seeks the same result by imposing burdens on the shipping of 
the United States, and by availing itself of the habits and pre- 
judices engendered in a state of colonial dependence. 

These efforts to stay the progress of a great people have been 
unavailing. The policy of the federal government has been 
directed to correct the evils entailed upon us by the colonial 
system, and to cure the prejudices which were its legitimate 
results. It has proved eminently successful. 

The first half century has scarcely closed since our birth as 
an independent power, and what momentous changes have 
taken place ! Our own wealthy metropolis even now presents 
striking marks of the helpless and dependent state of its early 
inhabitants. Dwelling-houses still exist here, which were built 
of bricks that the colonists were obliged to import from Hol- 
land. Little more than a century has passed since the date of 
their erection, and what a contrast ! On the uncultivated island 
of the Manhadoes stands a city — the commercial emporium of 
a new world, greater in importance than any in the native coun- 
try of its founders. The silent forest has disappeared, and in its 
stead are crowded streets alive with the bustle of civilized men, 
A capacious harbour, which then only gave shelter to the canoes 
of the aborigines, is now filled with shipping, that crowd from 
every port to pour their tribute into the great mart of American 
commerce ; and a new application of power by American 
genius has peopled the then lonely, but always magnificent 
Hudson, with a novel species of navigation, which move over 
the waters self-impelled and self-directed. 

The parent colony of New-England, that in its infancy was 
saved from famine by the unexpected arrival of a provision 
ship, has now expanded into six powerful states, rich in a native 
population, and abounding in wealth, industry, science, and all 
the arts of civilization. Other communities, too, on the banks 
of the Mississippi and on the shores of Erie and of Huron, claim 
her as their origin, and surpass in power and numbers the most 
sanguine expectations as to the future growth of that infant 
colony. The" states, that v> ere formed from the old North West 



27 

Territory — a territory that within the memory of the present 
generation was the abode of Indian tribes, — now own a popu- 
lation nearly equal to that of the whole provinces, when some 
members of this society were in their infancy ; and all these 
great and growing republics, refer back to the landing at Ply- 
mouth as the era of their birth, and hail that settlement as their 
common mother. 

Instead of several distinct communities, thinly scattered 
through thirteen provinces along the sea-coast, we find a dense 
and united population pouring into the inierior, accompanied by 
the arts of civilization, and the refinements of social and culti- 
vated communities. Educated and intelligent man is taking 
the place of the savage, and is fast advancing to the borders of 
the Pacific ocean, making the wilderness to smile like a garden, 
and " sowing towns and villages as it were broadcast through 
the country." 

The shipping which, at the formation of the federal govern- 
ment, was inadequate to the transportation of our own exports, 
now whitens every sea with its canvass, and bears the varied 
productions of our soil to every quarter of the globe that is 
open to American enterprise. The striped bunting, which has 
within so few years appeared among the symbols of national 
authority, now floats in every port, and at the same moment 
excites the jealousy of a power, self-styled the mistress of the 
sea, and compels the corsairs of the Mediterranean to pay ho- 
mage to the laws of civilized nations. 

The extensive American territories, all access to which, at 
the era of our Revolution, was debarred by European jealousy, 
as if they had belonged to another planet, have profitted by the 
glorious example of this country, and shaken off their colonial 
fetters. Their emulation has been excited by our success ; 
their patriotism has been stimulated by our prosperity ; their 
desire of self-government has been warmed by contemplating 
the operation of our free institutions. 

The crepuscular light, which first appeared in the north, and 
now illuminates the whole hemisphere, was the dawning of their 
own freedom. They have awakened from the slumber of 



28 

slavery, assumed their rank in the family of nations, and the 
American continent, from the St. Lawrence to its southern ex- 
tremity, is declared free as the bounty of Providence created it 
to the commerce and enterprise of the human race. Commu- 
nities, each occupying territories greater in extent than the 
whole United States, have successively dissolved their colonial 
connection with Europe, and, at the moment of declaring their 
own freedom, have augmented the independence of those who 
preceded them, and pledged their national existence against 
the re-establishment of the colonial system. The political insti- 
tutions of nations, whose fathers never heard of the name of 
civil freedom, are modelled after the popular constitutions of 
the United States. A community of independent powers, all 
possessing representative governments, now occupy the western 
world, and interpose an insuperable obstacle to the pretensions 
of Europe. The lofty plains of Mexico and Peru ; the fertile 
banks of the Orinoco and La Plata ; even the awful summits 
of the Andes, resound with the exhilarating watch-words of 
liberty and independence! 

The great principle of non-conformity — of dissent from re- 
ligious system; abjuration of the political institutions ; and re- 
sistance to the commercial policy of Europe, is at last ascendant. 

Advance, then, ye rising generations ! To you is entrusted 
the completion of this great experiment. On you, your country 
relies for the fulfilment of her hopes. To you, she looks for 
the realization of that glorious promise, which is held out to 
mankind by her past history, and her present institutions. To 
you she confides the sacred deposit of the freedom of the world. 
By the toils and sufferings of your fathers — by the martyrs of 
the Revolution — by the blood poured out like water, by the 
patriots of humanity in every clime and every age, in the same 
godlike cause — she implores you to be faithful to her trust. 
She adjures you to persevere in the course which your history 
has marked out — to consider nothing as finished, while anything 
remains undone, until the American system is triumphant, and 
you are as completely separated from Europe by character and 
policy, as by the eternal barrier which heaven has placed be- 
tween us. 



From the North Ameiican Review, October, 1823. 

The Principles of the Holy Alliance ; or Notes and Manifes.ioes 
of the Allied Powers. London, 1823. 

These papers are well calculated to excite reflection in the 
mind of every liberal statesman and national jurist. They af- 
ford the strongest indications, that have yet been given, of a 
settled determination on the part of the allied monarchs, to 
preserve by force the ancient system of government from any 
reformation ; unless proceeding from a quarter where, hitherto, 
every thing savoring of an innovating spirit has been carefully 
repressed, and where all reformers must necessarily meet with 
their natural and eternal enemies. If the governing principle 
of these documents be once established — that all reformation 
originating with the people, or caused by their interference, is 
inconsistent with the welfare and repose of Europe, and, as 
such, is to be put down by the combined arms of foreign pow- 
ers — we may indeed abandon all hope of any melioration in the 
condition of mankind ; except through the struggles and throes 
of a convulsion not inferior in horror and bloodshed to the 
French Revolution. Instead of partial reformation, confined to 
each particular kingdom, and effected at different periods, the 
peace of the world will be destroyed by a total and general 
revolution, in which the aristocratic and liberal parties through- 
out Christendom will be engaged in active hostility. The only 
effect of any combination, like the Holy Alliance, to put down 
the spirit of revolution without extirpating its causes, must be 
to retard the progress of innovation, until the revolutionary ex- 
citement shall have accumulated beyond the power of resistance 
or control. To expect that this result will be averted, by the 
voluntary surrender on the part of the privileged orders of their 
immunities, is to hope for an event contrary to all experience. 



30 

It is to suppose a change in human nature to be easier tlian a 
political revolution. The natural tendency of all aristocratical 
and monarchical institutions is to augment the power in the hands 
of the rulers ; and while the wheels of government move on 
without interruption, and the splendour of the privileged orders 
is maintained at the expense of the labouring portion of the 
community, they are not sensible of the misery of those beneath 
them. They so seldom come in contact with the inferior 
classes, that they feel no sympathy in their condition, and 
before it is displayed by a surrender of any of their privileges, 
they must be reminded that government was established for 
something besides the enjoyment of kings and nobles, by com- 
plaints that never proceed but from a desperate people, and 
are conveyed in a voice, whose very tones speak force and 
violence. 

To insist, therefore, that all reformation must proceed from 
the monarchical part of the government, (a proposition which 
of itself presupposes a consciousness of imperfection rarely if 
ever felt,) is sufficiently absurd. But when to that is added the 
monstrous maxim, that all innovation proceeding from the 
forcible interference of the people with their rulers, is to be 
crushed by the armies of surrounding nations, they together 
form a theory of despotism, at once subversive of the laws of 
nations and the best hopes of mankind. The political regene- 
ration of Europe is placed at a boundless distance, and is only 
to be expected, when, by the gradual operation of those causes, 
that have so much enlightened the public mind in the old world 
within half a century, the oppressed in all civilized kingdoms 
shall be arrayed in open opposition to their oppressors. At 
what time this state of things shall take place it would be im- 
prudent to prophesy ; but that this crisis is not far distant may 
be easily foreseen by all who have examined the present 
political and social state of Europe with the slighest attention. 
The general diffusion and increase of wealth, the extension of 
knowledge to the lower classes, and the great improvement in 
the condition of men in almost every particular, had, in the 
infancy of the present generation, rendered the actual situation 



31 

of society inconsistent with its existing civil institutions. Deri- 
ving their origin from the warhke barbarians, who established 
the feudal system, and among whom military science and cour- 
age were the only requisites to high station, and the best lance 
and the strongest arm were the most indisputable titles to rank 
and property ; they necessarily became unsuitable to a com- 
mercial community, in which industry, enterprise and economy 
were regarded as the best qualifications to ensure respect and 
power. The ignorant warriors who overran Europe during the 
sixth and seventh centuries, and who laid the foundations of 
most of its civil institutions, as conquerors of the countries they 
invaded, according to the prevalent code of war, took absolute 
possession as in property of the land and its occupants. They 
sought to transmit their power to their latest descendants, by 
confining their attention to warlike pursuits, and provided for 
their support by appropriating to themselves the productions of 
the soil and the labour of its inhabitants, who were divided 
among the conquerors as appendages to the land. These claims 
were at first maintained by the same force with which they 
were acquired, and after the victors and vanquished were amal- 
gamated into one community, by the juridical powers assumed 
by the seignoral lords within their respective domains. They 
were thus interwoven as it were into the constitution of society. 
This assumption of rank and superiority was not resisted by 
the dispirited and vanquished cultivators, happy in the preser- 
vation of their lives ; and the subsequent generations growing 
up under that system, (which was tolerably well adapted to 
the savage state of the world.) were not tempted to innovate 
upon it by those provocatives to an inquiring and adventurous 
spirit which are afforded by modern society. On the contrary, 
they continued to perform the task assigned to them in the 
social system, viz., that of labouring for the benefit of their 
feudal lords, without profit or reward. The hereditary claim 
of the nobility to these unpurchased and unmerited services, 
could not long exist in any except a military community. The 
necessity under which the cultivators then laboured, of seeking 
protection against the barbarous hordes, which the northern 



32 

regions were constantly pouring forth to devastate and plunder 
the more fertile countries of the south, induced them to ac- 
quiesce in the exorbitant price, that was demanded for the ser- 
vices of their military lords. A respect, too, was felt by the 
peasantry for a nobility, who displayed in so eminent a degree 
the attractive qualities of a warlike race, and whose offspring, 
stimulated by their fathers' example and the manners of the 
times, were early initiated and excelled in those exercises which 
exalted their ancestors to their high stations. By these means, 
the notion of hereditary rank was justified, and the privileges 
of the feudal aristocracy were sustained by popular sentiment, 
long after the qualities which had earned and preserved those 
immunities had become less necessary for the rulers of a 
nation. 

The laws of primogeniture and of entails all tended to the 
same object, viz., to perpetuate and augment the power of the 
privileged classes ; and whilst the mass of property consisted 
of land and its raw productions, their privileges rested upon 
the sure foundation of enjoyment and ability to maintain it. 
Their tenants, who belonged to them by law, and obeyed them 
from habit, formed a large portion of the community, and with 
the courage and military skill of their lords to direct them, 
would have easily overpowered those inhabitants who felt dis- 
posed to resist their authority. In a society thus constituted, 
power must have become concentrated in the hands of a few ; 
where it would be augmented until it was rendered intolerably 
burdensome to the rest of the community. Thus, in most of 
the nations adopting the feudal system, we find the nobility 
claiming to exercise privileges inconsistent with the very end 
of society, while the cultivators of the soil, or the serfs, were 
reduced to a condition but little if any better than that of do- 
mestic cattle. From this state of things the political institutions 
of Europe derive their origin. Here we see the beginning of 
the privileged classes, of their independent and conflicting 
courts of judicature in the same kingdom, and of those feudal 
institutions in general, which, by the progress of society, have 
been rendered such insufferable abuses in modern Europe. 



83 

The institutions that were well adapted to a time in which 
agriculture was the chief productive art, and was the chief 
end of government, were no longer tolerable, when the manu- 
facturing and commercial arts had become the main business 
of men, and governments devoted their efforts to develope the 
resources of their respective countries. The great amount of 
real property, which was monopolized and withdrawn from 
general use by the nobility and the church, (enriched as it was 
in the dark period of religion,) was also at variance with the 
spirit of an age, in which an active circulation of capital was 
required by the habits of the community. Many efforts have 
been made to reform these abuses, and to render the political 
institutions of the old world more conformable to the advanced 
state of society. The barriers, behind which the hereditary 
aristocracy had intrenched itself, have been partially destroyed, 
and individuals, who had obtained wealth by commerce, or in- 
fluence by talent, have been received into its ranks, thus con- 
ferring splendour and strength upon that body, to which they 
thought it an honour to be admitted. The real property of the 
country has been rendered the subject of commerce, and a 
general revolution has become manifest in the jurisprudence 
of Christendom. But still most of the obnoxious institutions 
remain. The mass of real property on the continent is placed 
beyond the reach of commerce, by the great wealth of the 
privileged orders, and by the independence of the two great 
landholders, the crown and the church. The nobility still ex- 
ercise privileges inconsistent with just and equal laws, even 
when the qualities which elevated them to rank are no longer 
peculiar to that class, and other requisites are demanded for 
public men in which they are still more deficient. In many 
countries independent and seignorial judiciaries are tolerated ; 
a system of partial and unequal taxation is prevalent, and the 
whole face of society presents the revolting spectacle of the 
civil institutions in open or secret hostility with the habits and 
wants of its members. The great spring that has been given 
to the public mind by the American Revolution, and to produc- 
tive industry by the vast improvements in machinery within 

5 



34 

half a century, has contributed to place these in still stronger 
opposition. The undefined and general feeling of dissatisfac- 
tion, that slumbered without any specific object, has grown by 
the operation of these causes, and by the opposition of the 
advocates of the ancient order of things, into a settled and 
active hatred against all the institutions originating in the feudal 
system ; until we find the absolute governments in alliance for 
the purpose of forcibly supporting the establishments that the 
friends of liberal principles have determined to abolish. 

The principles promulgated in the manifestoes of the allied 
monarchs will draw the line of demarcation between these 
parties more distinctly. If their conduct, since the downfall 
of Bonaparte, had not already convinced, these documents 
must convince every person who values political freedom, that 
there is no safety for the advocates of liberal doctrines in any 
corner of Europe, while the league between the continental 
despots subsists unbroken. This conviction will produce a 
sympathy and correspondence between the friends of liberty 
in every country, that must swallow up all local and even na- 
tional attachments, and lead them to unite against the Holy 
Alliance, and may probably bring on the final contest sooner 
than it would otherwise take place. The war against Spain, 
and the state papers justifying it, proceed upon the simple 
axioms, that the monarchical branch of the government is the 
only part that is to be regarded as sacred, that it is beyond the 
reach of reform, and that all political innovation can rightfully 
proceed only from the free will and voluntary grant of the 
sovereign. From these undeniable maxims, as they call them, 
they draw the corollary, that any violation of them may be 
punished by the military interference of the adjoining king- 
doms, supported by the whole force of the alliance. All pre- 
tences of danger to their own quiet from the intrigues of the 
new rulers are laid aside as unnecessary to disguise their 
designs, and the plain principle of interference with the political 
constitution of the country in which the reform has been 
adopted, on the ground of an innovation against the royal will, 
is unequivocally advanced. In this enlightened age, is this 



35 

monstrous proposition, which heretofore has been scarcely 
heard of but in the adulatory address of some wretched court 
parasite, for the first time inserted in the pubhc manifestoes of 
civilized monarchs, and sought to be engrafted upon the national 
law of Europe. The allied powers are united to support it, 
and it must of necessity reduce the liberals in all kingdoms to 
make common cause against them. The war is waged not 
against revolutionary Spain alone, but against the free princi- 
ples of government in that, and through that in all countries. 
The alliance aims at the destruction of the British as well as of 
the Spanish constitution, and considers them both as equal 
nuisances, and to be abated in the same manner, as soon as cir- 
cumstances will warrant the attempt. That we may not be 
accused of precipitancy in assenting to this conclusion, we will 
proceed to lay before our readers the circumstances under 
which the Holy Alliance was formed, and to examine the princi- 
ples promulgated in its official documents, and the acts autho- 
rized by the parties to that league. 

The first twelve years of this century may be regarded as 
an era in the political history of the world. The ancient go- 
vernments of Europe had found the principles of the French 
Revolution too powerful for their means of resistance. Aided 
and developed by the extraordinary genius and energies of 
Bonaparte, they had overspread Christendom, shaking the foun- 
dation of thrones, paralyzing the strength of the privileged 
orders, and literally " with fear of change perplexing monarchs." 
The feudal system was overthrown in France, and by its down- 
fall in that kingdom a fatal blow was given to all institutions of 
the same family in other countries. The invasion of Spain, 
though unjust and indefensible, was not without some good 
effects. The inquisition was abolished, together with the com- 
mercial monopolies, the unequal and oppressive imposts, and 
the independent and seignorial courts of judicature. Like a 
fire that had passed over the country, though it had destroyed 
vegetation, it had given activity to the soil, and purified the 
atmosphere. The Spanish colonies were affected by the same 
event, and the destruction of the government in the mother 



36 

country also severed the unnatural chain which bound them to 
Europe, The commercial supremacy of Great Britain trembled 
on the verge of ruin, and it seemed as if a new and sounder 
state of things was about to grow out of the convulsions of 
France and the injustice and violence of the master of Chris- 
tendom. This happy consummation could not indeed be ex- 
pected, while, in full possession of the resources of his empire 
and of absolute power, Napoleon went on in his career of usur- 
pation and aggression upon the surrounding kingdoms. When, 
however, he had met with so severe a check in Russia, and 
subsequently, by the rising of the German people, had been 
compelled to retire beyond the Rhine even to his capital, the 
allied monarchs might have dictated a peace, that should have 
put it out of his power again to disturb the quiet of his neigh- 
bours, while the rights of the French nation were respected. 
By this course they might have secured the lasting tranquillity 
of the civilized world. The people of France would have been 
unwilling to enter the lists with combined Europe a second 
time, and Napoleon would have been obliged to listen to their 
entreaties for an interval of repose. The privileged orders and 
crowned heads would have felt the necessity of respecting 
public opinion, while the people would have been contented 
with the great improvement in their political condition ; and the 
benefits resulting from the partial destruction of the feudal 
system, would have remained to compensate mankind for the 
temporary miseries of the French Revolution. 

But the heads of the coalition seemed incapable of profiting 
by the great moral and political lessons that had been presented 
by the events of the preceding twenty years ; or they had 
acquired knowledge only to misuse it. The demands of the 
allies were augmented in proportion to the diminution of the 
power of Bonaparte, until they lost their moderation in the in- 
toxication of success, and undertook to impose a family upon 
France, which was the abhorrence of the majority of the peo- 
ple, as associated with the burdens that they had shaken oflf at 
such an expense of lives and property. From affirming that 
they had no intention or desire to interfere with the internal 



37 

concerns of France, they proceeded to declare, ^vhen at Frank- 
fort on the Rhine, in December, 1813, that "they would not lay 
down their arms until the political state of Europe should be 
re-established anew, until immovable principles should have 
resumed their rights over vain pretensions." In this document 
was first displayed a spirit totally different from that in which 
they had until then prosecuted the war. The independence of 
Europe, the unjust violence and grasping ambition of France, 
were not spoken of; but a new proposition was advanced, 
which could not be comprehended, until explained by subse- 
quent events. On the first of March, 1814, having advanced 
into France with every prospect of ultimate success, the allied 
powers entered into a treaty at Chaumont, in which they bound 
themselves " never to lay down their arms until the object of the 
war, as they have agreed upon it among themselves, should be 
fully obtained." In the fifth article of the treaty they spoke of 
consulting, in the moment when peace with France should be 
concluded, upon the means necessary to preserve the peace of 
Europe. This treaty, which may be regarded as the basis of 
the present public law, or legitimate doctrines of Europe, was 
to endure twenty years. For what purpose it was formed, and 
for what objects additional concert was premeditated, can be 
understood only by attending to the subsequent acts of the high 
powers. The object that was obscurely hinted at in the Frank- 
fort manifesto, they deem themselves strong enough to acknow- 
ledge when at Paris ; and they there declared, that they would 
not treat with Napoleon, nor with any of his family, and " that 
they respected the integrity of France, such as it existed under 
her legitimate kings." 

This declaration plainly evinced their resolution to deprive 
the French people of their right to establish their own govern- 
ment, so far as to render the abdication of Bonaparte essential 
to the peace of his empire. This resolution was plausibly de- 
fended on the ground that the inordinate ambition, great genius 
and un'exampled energies of that man, had rendered his pos- 
session of power incompatible with the repose of Europe. 
Still they cautiously avoided any thing resembling dictation to 



38 

the French nation of the dynasty to which it must submit. 
The pubhc mind was not yet prepared for the developement of 
their ultimate designs, and a too open declaration of their prin- 
ciples might have caused a reaction that would have been dan- 
gerous in the extreme. The battalions of Bonaparte, though 
weakened, were not dispersed ; the national guards still held 
their arms, and, in the midst of a brave and armed people, the 
bare proposal of forcing a constitution and monarch upon them 
might have roused a spirit that would have proved fatal to the 
projects of the holy league and restored the fallen fortunes of 
Napoleon. Caution was therefore necessary, and duplicity, in 
conformity to their usual policy, was resorted to. Upon enter- 
ing Paris, the allied monarchs promised, in the face of the 
world, "that they would recognise and ^waran^j/ the constitu- 
tion, which the French nation should give itself," and they in- 
vited " the senate to appoint a provisional government capable 
of providing for the want of administration, and of preparing 
such a constitution as might be adapted to the French people." 
This guarantee was signed by the emperor of Russia on the 
31st of March, 1814, and declared by him to express the inten- 
tions of all the allied powers. As it was never disavowed, 
we may safely conclude that they were parties to and sanc- 
tioned this guarantee. 

In this manifesto was contained a full and express acknow- 
ledgment of the right of the people to alter their political consti- 
tution, a right which they had assumed and vindicated in the 
midst of unparalleled violence and tumult. They now deny 
the truth of this principle, but this does not destroy the force of 
their acknowledgment ; neither is it invalidated by their subse- 
quent refusal to comply with their guarantee. This may show 
perfidy and duplicity on the part of the allied monarchs, and that 
for tempoi;^ry purposes they could stoop to promise to the people, 
what they never meant to perform ; but the fact, that their guar- 
antee was offered and accepted, demonstrates their acquiescence 
in that great principle, which they now seek to subvert by policy 
and arms, viz. the right of the people to change their government. 
In compliance with this request, a provisional government was 



89 

established by the senate, and on the 6th of April, 1814, it pre- 
sented the constitution, which it had formed, to the nation. In 
that instrument, the right of the people to alter their form of go- 
vernment is expressly asserted. It further stated, ' that the 
French people call freely, to the throne of France, Louis San- 
islaus Xavier de France, brother of the last king, and after him, 
the other members of the house of Bourbon, in the ancient order.' 
In the 29th article, provision is made for submitting the consti- 
tution to the people for their acceptance, and Louis was to be 
proclaimed king as soon as he had signed and sworn to the con- 
stitution. He consequently was not to be proclaimed king, 
before he had performed that condition ; and the allied powers, 
in the character of guarantees, were bound to see that he faith- 
fully performed it. Louis the XVIII, who, while these prepa- 
rations for his restoration were going on, had remained in 
England, began his journey to Paris, then occupied by the allied 
armies, neither assenting to, nor rejecting the constitution, but 
preserving a profound, and, as we think, a deceitful silence, with 
regard to the form of government which should be established 
in France. His brother, indeed, who was in Paris, and acting 
as his representative, encouraged the belief of his approval of 
the constitution; but Louis made no public declaration of his 
opinion on that subject, until he imagined himself firmly estab- 
lished on the throne of his ancestors. As soon, however, as 
Napoleon had left France, viz. on the 2d of May, 1814, at St. 
Ouen, Louis issued a proclamation, approving the basis of the 
constitution, but condemning certain articles, which, in their 
present form, he declared could not be considered fundamental 
laws of the state. As he could not accept a constitution neces- 
sarily requiring revision, he convoked the senate and legislative 
body to meet on the 31st of May, to examine one, which would 
then be placed-before them. By this declaration, he denied the 
right of the French nation to frame a constitution for the govern- 
ment of the kingdom ; and he violated the guarantee of that right 
by the allied powers. It then became their duty to enforce it. 
Their pledge (the most solemn that could be given by monarchs 
to a people in arms) was forfeited by supporting Louis upon 



40 

any other condition, than that of his absolute acceptance of the 
constitution framed by the senate. They had invited the nation 
to recall him upon that condition, and had promised to guaranty 
its performance. The objection of Louis, to the form of certain 
articles, and his promise to present an unexceptionable consti- 
tution to the nation, even ifsincei'ely given, were not equivalent 
to the unconditional acceptance that was promised. But the 
objection of the king was to the substance, and not to the form, 
and the promise (if given for any purpose except to obtain time) 
was never executed in its proper sense. The constitution of 
the senate asserted the principles of freedom ; the instrument, 
framed by Louis, was founded upon the doctrine that ' the breath 
of worldly men cannot depose the deputy elected by the Lord.' 
In the preamble, he claimed the throne, not as it was offered to 
him, as successor to Louis XVL called freely by the French 
people, but as successor by indefeasible right to his nephew, 
Louis XVIL He degraded the constitution into a charter, pre- 
facing his grant with an assertion, that, in France, all authority 
resided in the person of the king. After proving by history, 
the degraded condition of the French people in former times, 
and declaring that they owed their present immunities to the 
generosity of their sovereigns; and deducing from these premises 
the necessity of preserving the royal power and prerogative, he 
concluded with ' granting, conceding, and releasing,' (in the form 
of a deed at common law,) ' to his subjects, the privileges con- 
tained in the constitutional charter.' It is unnecessary to point 
out the differences between the charter and the constitution of 
the 6th of April. The two instruments rest upon different prin- 
ciples, and all comparison would be useless. One provision, 
however, may be quoted, as a specimen of the whole. By the 
constitution, either legislative body was enabled to propose laws, 
excepting for contributions : by the charter, all laws originated 
with the king. 

What excuse, but that of increased power, can be urged for 
this breach of faith on the part of the allied monarchs ? It cer- 
tainly cannot be pleaded in justification of their inattention to 
the conduct of Louis, that it was a matter concerning the inter- 



41 

nal government of France, with -which they had no right to in- 
terfere, and that when once on the throne, his subjects and he 
should have decided their differences without a foreign arbiter. 
Of this subterfuge they have deprived themselves, by their inter- 
position after the return of Napoleon from Elba. Their right 
to interfere was claimed under the capitulation of Paris. The 
committee of the Congress of Vienna, in their report of May 15, 
1815, put it solely upon that ground. They considered the 
French nation as a party to that capitulation, and that their 
conduct, in recalling Bonaparte, was a violation of that treaty. 
If that treaty was binding upon the French people after the return 
of the Bourbons, it was binding upon the allies, and their solemn 
guarantee of their right to form their ow^n government subsisted 
in its full force, unaltered by the restoration ofthe ancient dynasty. 
Interference in behalf of the people was as justifiable as inter- 
ference in behalf of the monarch ; and that they did not comply 
with their guarantee, while they did compel the French nation 
to perform its part of the capitulation, only proved their total 
indifference to promises or principles, except as they conduced 
to the establishment of a despotic system of government. It 
was not a little remarkable, that whilst the allied powers were 
declaring their intention of not interfering in the domestic affairs 
of France, they considered the French people as distinct from 
their government, — so much so, that the former was regarded 
as a party to, and bound by a treaty to which the latter never 
assented, and a war was waged against the nation for its infrac- 
tion of that treaty, while the invaders were in alliance with the 
government. This inconsistency displayed in a striking man- 
ner their unprecedented violation of public law, and how hard it 
was for them to reconcile their conduct with any known and 
acknowledged principle. It is however partially explained by 
a little circumstance, to be remembered not only as affording 
the key to this mystery, but also as indicating a division between 
the allies, and the disposition of the British government to return 
to a wise and more liberal policy. When Napoleon, by his return 
from Elba, had deranged the views of the coalition for the paci- 
fication of Europe, the powers assembled at Vienna declared 

6 



42 

him an outlaw, and announced their determination to maintain 
the treaty of Paris, and to guard against every attempt to re- 
plunge the world into the disorders of revolution. Twelve days 
subsequent to this declaration, viz. 25th of March, 1815, the 
ministers of Great Britain and the monarchs of Austria, Russia, 
and Prussia, entered into a new treaty," to apply to the invasion 
of France the principles of the treaty of Chaumont, to preserve 
the order of things so happily established in Europe, to maintain 
the treaty of Paris, and the stipulations determined and signed 
at the Congress at Vienna." They consequently agreed not to 
lay down their arms, until Napoleon should have been rendered 
absolutely incapable to create disturbances, and to renew his 
attempts for possessing himself of the supreme power in France. 
In the last article, his Most Christian Majesty was invited to 
accede to the treaty, and to make known what assistance cir- 
cumstances would permit him to give in furtherance of its objects. 
Whether it was that the British Court was apprehensive, from 
the unanimity and exulting gladness with which Napoleon was 
received by the French nation, that the war would be intermina- 
ble ; or that the house of Brunswick at last saw that it was about 
condemning the title by which it held the British crown, we 
are unable to decide. It however took a distinction, which 
would have enabled it either to conclude peace without incon- 
sistency, or to defend its title to the throne of Great Britain 
without being embarrassed by its own acts. In exchanging the 
ratifications, the British minister declared that " the article invi- 
ting his Most Christian Majesty to accede to the treaty," was 
not to be considered as binding his Britannic Majesty to prose- 
cute the war with a view of imposing upon France any particular 
government. "However solicitous," the declaration went on to 
say, " he might be to see his Most Christian Majesty restored, 
and to contribute with his allies to so auspicious an event, he 
deems himself called upon to make this declaration, in conside- 
ration of what is due to his Most Christian Majesty's interest in 
France, and in conformity to the principles from which the 
British Court has invariably acted." To this explanation, the 
Austrian ambassador assented, as expressing the sentiments of 



43 ^""'^ 



his master, probably thinking a slight contradiction between pro- 
fessions and actions to be preferred to a difference with Great 
Britain, the purse-bearer of the alHance. While the represen- 
tatives of the allied powers were acting this farce at Vienna, 
the Duke of Wellington, the commander of their armies, was 
marching upon the French frontiers, and in a simultaneous proc- 
lamation to the French people, manifested the hollowness and 
hypocrisy of their professions. In that manifesto he declared, and 
the expressions are worthy of remark, "that henceforth Europe, 
united and moved by the same interest, must form but one power, 
and the sovereigns a supreme corporation, upon which will be 
raised the solid pedestal of the peace and happiness of nations. 
The rights of the monarchy will attain all from this august senate 
and be confirmed in its solemn acts. The name of Louis XVIII. 
is inscribed in this federal compact. The allied sovereigns 
placed him on the throne of his ancestors, and proclaimed the 
reign of the Bourbon family, until its extinction, over the French 
people. They now take up arms to restore and confirm that 
dynasty, to support the cause of kings, to consolidate the govern- 
ment, to secure the repose of mankind, and to give an imposing 
example of sovereign authority to all mankind." The same sen- 
timents were reiterated in the proclamations, dated March 18th, 
and April 8th, 1815, signed by all the powers at Vienna. In 
these public papers, the mask of respect assumed by them, for 
the independence of France, is thrown off. They avow that 
the violation of the capitulation of Paris was their own act, and 
not that of the adherents of the Bourbons, and they declare their 
determination, again to disregard their guarantee, while they 
insist on the compliance of the French nation with its part of 
the treaty. 

The battle of Waterloo decided the contest in their favour. 
The Bourbons were again restored, and with more marks of 
violence and conquest than before. The allies avoided giving 
any pledge to observe the rights of the nation, and the legisla- 
ture adjourned, after protesting that they yielded to superior 
force, and that the independence of the country was violated. 
As if there were not sufficient marks of their utter disregard of 



44 

their pledged faith, and of the explanation given at the exchange 
of the ratifications of the treaty of March 25th, 1815, the allies 
entered into a new treaty at Paris, November 20th, 1815, in 
which they agreed " for the purpose of maintaining inviolate 
the royal authority^' to station 150,000 troops on the frontiers, 
and within the fortresses of France, for the space of five years, 
unless "the allied sovereigns, at the end of three years, should, 
in concert with his Most Christian Majesty, agree to acknow- 
ledge, that the motives which led to that measure had ceased to 
exist." In this military occupation of France the revolution 
ended. The popular party was overcome by an overwhelming 
force, and Louis le Desire was placed upon the throne of his 
ancestors, and there maintained, by the armed legions of the 
alliance. To this moment, however, a pretence of public good 
was held out as the motive to their conduct. Whatever may 
have been their real intention, as to the conclusion to be drawn 
from the restoration of hereditary monarchy in France, the act 
is glossed over with fair professions of zeal for the welfare of 
mankind, and of the necessity of suppressing principles dan- 
gerous to the existence of social order, and afterwards of the 
necessity of disarming an individual, whose ambition and genius 
rendered his possession of power fatal to the repose of Europe. 
These principles, though perhaps their applicability depended 
upon the unnatural and unsound structure of society in the old 
world, still were not easily controverted by statesmen living in 
that society, and defending the permanency of the ancient 
establishments. Although the abuses of the feudal system, and 
the disproportionate privileges of the nobility in the continental 
monarchies, afforded materials for the contagion of revolution- 
ary principles ; or even for the military conquests of Bonaparte, 
directed by his genius, and maintained by a system better 
adapted to the wants and nature of modern society ; still to 
these courts struggling for existence itself, the revolutionary ex- 
citement in France, or the continuance of Napoleon at the head 
of his empire, seemed more than a pretence for their interfe- 
rence in the domestic affairs of that kingdom. The extent and 
jmmediateness of the danger prevented men from putting to 



45 

the test the correctness of the principles which governed their 
conduct. But when Napoleon was imprisoned in St. Helena, 
and Louis was securely seated on the throne of his ancestors ; 
and particularly when, in 1818, the allied powers, at Aix-Ia- 
Chapelle, declared " they recognised with satisfaction the order 
of things happily established in France by the restoration," this 
pretence no longer existed, and the general rule, that any inter- 
ference with the internal government of a country is an attack 
upon its independence and a violation of the laws of nations, 
assumed its original force. The grounds upon which the ex- 
ceptions had been justified were annihilated, and the ordinary 
maxims of national jurisprudence were restored to their usual 
active operation. Such, however, was not the intention of the 
members of the Holy Alliance. They had seen the extension of 
liberal principles; they had witnessed the progress of intelli- 
gence in modern Europe, and they feared its operation upon 
their subjects. They knew that an augmented activity in the 
public mind would cause the overthrow of the political institu- 
tions of their own kingdoms, as it had done those of France, 
and in their several assemblages they adopted and matured mea- 
sures to arrest the march of political innovation. It is impos- 
sible to doubt this, when we look at the simultaneous acts of the 
allied monarchs to promote that object, and advert to the fact 
that these were adopted shortly after a general congress had 
been held. Upon the return of his Prussian Majesty from Paris, 
namely, on the 8d of January, 1816, a decree was published, 
suppressing certain political journals and restricting the liberty 
of the press. The sacred alliance was acceded to by the king 
of the Netherlands, June 21st, 1816, and in the month of Sep- 
tember following, a law was proposed by the king to the legis- 
lature, and approved by that body, prohibiting any discussion 
uponUhe nature or character of any foreign government. In 
France, the press was already under the inspection of the police, 
but in 1817 a law was passed imposing upon it further restric- 
tions, and on the 30th of December, in that year, all political 
journals were suppressed by law until the end of the legislative 
session in 1818. These measures not only evince the hostility 



46 

of the members of the alliance to a free press, that great engine 
of political reformation, but a settled and concerted plan to sup- 
press all attempts at innovation by their joint efforts. They 
had experienced the advantages of acting in concert against 
their disaffected subjects, and at Aix-la-Chapelle an agreement 
was formed, to which France acceded upon the invitation of 
the original parties. By this agreement, Austria, Great Britain, 
France, Russia, and Prussia, " after having investigated the 
conservative principle of the great interests, which constitute the 
order of things established in Europe by the treaty of Paris, of 
May 30th, 1814, the recess of Vienna, and the treaty of peace 
of 1815," declared, 1st, that they would preserve the principles 
of intimate union, which had hitherto decided with respect to 
all their common interests and relations, &c. 2d. That their 
union should have for its object only the maintenance of gene- 
ral peace in conformity with those treaties. 3d. That France, 
associated with the other powers by the restoration of legiti- 
mate monarchy, engaged to concur in the maintenance and 
consolidation of a system which has given peace to Europe and 
assured its duration. 4th. For the purpose of attaining that 
object, future meetings of the allied powers were provided for, 
to which the contracting powers were to be invited ; but if the 
affairs of any other state were to be brought before the meeting, 
that power should be invited to attend and participate in the 
debates relating thereto. 

This combination of monarchs at this time began to assume 
the form it was originally intended to take, but which circum- 
stances had until then rendered unnecessary. It was to be con- 
tinned upon a new principle. Not as before, to suppress any 
particular danger, or to oppose any particular government, but 
to guard against indefinite dangers which might exist, — to act 
as a sort of precautionary, supervising police. 

We might here condemn this measure as creating an unpre- 
cedented tribunal, without any apparent or real necessity ; 
inasmuch as the allied powers did not intimate that any existed, 
or that any new revolutions were to be apprehended. But this 
would be shutting our eyes to the evidence before us. Revo- 



47 

lutions were to be expected ; but the allied monarchs could not 
allude to their apprehensions, without exposing the causes of 
the universal desire of chanrje. If thev had said that the alii- 
ance was formed against the revolutionary spirit of their own 
subjects, the inquiry would have presented itself, '• What is the 
cause of this spirit ?" and the public mind would have reverted 
to the arbitrary laws and despotic systems of government in 
their several kingdoms ; the promises of those monarchs to 
reform their political constitutions, and the violation of those 
promises, when the danger which had extorted them had passed 
away. They therefore resorted to a new combination, under 
the pretence of subserving the interests of religion and morality ; 
but, in reality, to guard against the reformation of their govern- 
ments, and, if possible, by united and simultaneous eftbrts to 
stay the progress of improvement. To further this great object, 
shortly after the dissolution of the congress at Aix-la-Chapelle, 
laws were adopted in several of the continental kingdoms, hav- 
ing in view a still greater restriction upon the liberty of the 
press. On the 14th of October, 1819, a decree was issued, 
establishing a literary censorship for the kingdom of Hanover. 
On the 18th of the same month, his Prussian Majesty promul- 
gated a decree to the same effect, and at the same time the 
German Confederation passed a law, by which all periodical 
publications were subjected to a previous censorship. Other 
restrictions upon the press were imposed, the universities within 
the confederation were put under supervision, and professors 
who did not teach political doctrines suitable to the views of 
the aristocratic party, were to bo dismissed from employment. 
The Prussian Court adopted the same principles in a circular to 
the foreign agents of that kingdom, and the object of this super- 
vision was in that paper said to be, " to prevent young men 
from preparing for a life at once learned and active, — from be- 
coming what they ought not to be." This was, in other words^ 
expressing the fear of that party of the operation of intelligence 
upon the minds of those, who, by their activity, obtain influence 
in society. Tg co-operate with those decrees, a central com- 
mittee was appointed to meet at Mentz, to inquire into all revo- 



48 

lutionary movements or associations. The same year the 
French government adopted some new regulations respecting 
the press, which, in 1820, were so modified, that the editors of 
the hberal journals retired from the exercise of their duties, 
declaring that under those laws their labours could be of no 
service to the public. In Poland, notwithstanding the consti- 
tution guarantied the liberty of the press ; every publication, 
whether periodical or not, was subjected to the inspection of a 
royal censor, by an ordinance of the Russian Emperor, of July 
16th, 1819. These simultaneous acts, all tending to the same 
object, prove them to have been the result of a well digested 
and unanimous resolution. They show the efforts of the allied 
monarchs to have been directed to the achievement of one 
great end, namely, to extinguish the desire of innovation, per- 
petuate the old system of arbitrary government, inthrall the 
human intellect, and chain its freeborn spirit to the footstool of 
legitimate monarchy. But while their attention was occupied 
in those kingdoms wherein they suspected revolutionary prin- 
ciples to be most prevalent, the reaction upon their system 
commenced in the south of Europe, and they found new diffi- 
culties springing up at the very moment when they had sup- 
posed their end to have been accomplished. In the beginning 
of 1820, the troops that were assembled at Cadiz for the 
invasion of South America, being badly fed and clothed, and 
worse paid, revolted, and declared that they would not embark, 
and also that their arrearages should be paid. The people im- 
mediately took advantage of this disafTection among the mili- 
tary, and simultaneously throughout Spain proclaimed the 
constitution of 1812, which, on the 6th of March next following, 
the king, being without support, found himself obliged to accept. 
How this constitution was formed, and how it was overturned 
upon the return of Ferdinand from France, will be mentioned 
in another part of these remaks. At present we must confine 
ourselves to the relation of events. On the 1st of July the 
Neapolitan army followed the example of the Spanish troops, 
and proclaimed the Spanish Constitution of 1812 ; Naples 
having been formerly united to the same kingdom. On the 6th 



49 

of July, Ferdinand, the old king of Naples, abdicated, and his 
son Francis, wlio succeeded him, assented to the constitution, 
saving what modifications a national representation, constitu- 
tionally convoked, might propose. On the 20th of August a 
similar revolution took place in Portugal. A constitution was 
to be formed by the cortez, and the king was proclaimed as 
the constitutional monarch. These events soon attracted the 
attention of the self-constituted guardians of Europe. But 
instead of concluding from this general dissatisfaction evinced 
towards existing governments, that there was something faulty 
in their constitutions, or that they were unsuitable to modern 
societies, they determined to afford them their most efiicient 
support. A forcible opposition was therefore organized to these 
reformed governments, not because they threatened the politi- 
cal existence of the neighbouring kingdoms, or by their excesses 
disgraced the cause of freedom, but because the established 
order of things was invaded ; or, as it was declared in the Lay- 
bach circular, subsequent to the Neapolitan war, " because 
every change, which does not solely emanate from the free 
will — the reflecting and enlightened impulse of those, whom 
God has rendered responsible for power, leads to disorders 
more insupportable than those which it pretends to cure." The 
Emperor of Austria, being special guardian of Italy, according 
to the new system, took measures to summon the allied mon- 
archs to a congress, and in the month of October, 1820, they 
met at Troppau. On the 28th of December they issued a 
circular, in which they declared that "the principles which 
united the great powers of the continent to deliver the world 
from the military despotism of an individual issuing from the 
revolution, ought to act against the revolutionary power which 
has just developed itself. Without doubt," it continued, "the 
powers have the right to take, in common, general measures of 
precaution against those states, whose reforms engendered by 
rebellion are opposed to legitimate government. In conse- 
quence, the monarchs assembled at Troppau have arranged 
together the measures required by circumstances, and have 
communicated to the British and French courts their intention 

7 



50 

of attaining the end desired by mediation of force." Lord 
Castlereagh (and certainly lie was not a statesman to be shocked 
at any slight infringement of popular doctrines) was unable to 
assent to the principle asserted in this circular. On the 19th 
of January, 1821, the British Court issued its protest against 
any such interpretation being put upon the general treaties, to 
which the allies had referred as sanctioning that principle. This 
protest contained the following sentence, which not only more 
strongly marked the difference first manifested at the ratifica- 
tion of the treaty of Vienna, but pointed out the cause of that 
difference. " The British Court regard all interference with 
the internal concerns of a foreign government, as an exception 
to principles of great value and importance, and never to be so 
far reduced to rule as to be incorporated in the law of nations." 
This single sentence showed a radical difference between the 
policy of the Court of St. James and that of the Holy Alliance. 
While, however, it refused to join in the crusade against Naples, 
it fully admitted that Austria and her associates might engage 
in it with a view to their own security. The protest, though 
asserting an established principle with manly force, closed with 
certain professions as to the pure intentions of the allies and of 
their right to interfere, provided the internal commotions of 
Naples threatened the tranquillity of their dominions, which 
could not be regarded otherwise, than as an implied approba- 
tion of their conduct tovi^ards Italy. The Austrian troops were 
consequently put in motion, and in one short campaign annihi- 
lated the popular party in Italy. As if, however, fate had 
determined that the deceitful professions of the combined des- 
pots for the independence of other powers should be exposed, 
and their true designs fully developed, it so happened that in 
the midst of the Neapolitan war, a revolution broke out in 
Piedmont, against which the Austrian forces were immediately 
directed, as if they had been the ordinary police of Italy, and 
this a common breach of the peace. No consultation was had 
with regard to this revolution ; no invitation was given to the 
government of that kingdom, in conformity with the fourth 
article of the Protocol of Aix-la-Chapelle ; nor was there any 
delay to ascertain if the domestic disturbances were likely to 



51 

extend to other countries ; but the Piedmontese territories were 
immediately invaded and the new government overthrown, by 
the unsolicited interference of the foreign allies of its sovereign. 
With the suppression of the revolutionary spirit in Italy, they 
appeared to be then satisfied ; but in the Laybach circular, in 
which they justified their conduct, and appointed a time for 
another congress to assemble, the same alarming principles of 
interference with the internal concerns of other countries, are 
reiterated and maintained as incorporated in the public law of 
Europe, and the allies declare that " they will regard as null 
and contrary to the law of nations, all pretended reform effected 
by revolt and open force." Though this declaration might 
well be considered as a direct attack upon the Spanish and 
Portuguese revolutions, and indicative of more energetic mea- 
sures to be pursued at some subsequent period, still, as no im- 
mediate steps were publicly taken by the high powers to carry 
their resolutions into effect, it was generally supposed that Spain 
and Portugal would be protected from such unauthorized inter- 
ference, if not by the law of nations, at least by the dread of 
their power. The great monarchies of Europe were not to be 
treated in the same unceremonious manner as the petty states 
of Italy. In the case of Spain, too, there were some peculiar 
circumstances, which strengthened her claim to exemption from 
the special superintendence of the allies. By their peculiar 
religious and national prejudices, and by their almost insular 
situation, the Spanish people had been in a great degree sepa- 
rated from a considerable part of the European family. Their 
spirit of national independence had often rendered them invin- 
cible, and history afforded the Holy Alliance some striking les- 
sons on the danger of invading a gallant and haughty people, 
in a mountainous country. For three hundred years that nation 
resisted the gigantic power of Rome. The Saracen hordes, 
that overran the country, could not subdue it. Though outnum- 
bered, the Spaniards resisted, and after the lapse of centuries 
drove the Moors back to their own country, and the 

" Castilian mould, 
Incapable of stain, at last expelled 
Her mischief, and purged oft' the baser fire 
Victorious." 



52 

It was in the Peninsula, too, that the first effectual resistance 
had been made to the power of Napoleon. The rest of Europe 
had submitted after a long struggle to his authority, and acqui- 
esced in his continental system. The old king of Spain acted 
but as his deputy. By his orders the best portion of the Spanish 
army had been transported to the Danish islands in the Baltic, 
and the French troops had been admitted into and occupied 
some of the most important cities of the kingdom. Charles IV., 
(whose abdication, it should be recollected, though caused by a 
revolt of his subjects, was sanctioned by the Congressof Vienna,) 
and Ferdinand, his son, who was in possession of the crown, 
had agreed to submit their disputes to the decision of the French 
Emperor, and had placed their persons and their courts in his 
power. While in France, Ferdinand was induced to abdicate, 
possibly by motives similar to those of his father, and after his 
abdication he sanctioned the transfer by Charles of the Spanish 
crown to Bonaparte. Here then was a full and entire release 
of his subjects from their allegiance. If papers, and charters, 
and releases, are to be substituted in the place of principle, that 
release would have acquitted the people of Spain, even if they 
had adopted Joseph for their sovereign. Charles IV., influenced 
by personal fears of the violence of his subjects, then in open 
revolt against their monarch, had abdicated in favour of his son. 
This abdication he disowned, when those fears were removed, 
and transferred all his royal rights, and those of his family, to 
the French Emperor. To this transfer Ferdinand assented. 
Whether this assent was extorted or voluntary is unimportant, 
inasmuch as his father, being restored to the exercise of his free 
will, and no longer influenced by the terrors of a tumultuous 
crowd, had voluntarily abdicated in favour of Napoleon ; and if 
the people of Spain had not denied the right of their king to alter 
the constitution, the transfer would have been executed. Ferdi- 
nand and his court were without energy, and had submitted to 
fate ; and the Bourbon dynasty would have been at an end in 
Spain, and possibly in Europe, if the Spanish people had not 
taken the management of their public affairs into their own hands. 
Unsupported by allies ; without arms, money or leaders ; in 
presence of the French legions, who occupied the best part of 



53 

the kingdom, and in defiance of the might of the most powerful 
monarch that ever swayed a sceptre ; the Spanish nation re- 
solved to vindicate its independence, and the title of the heir to 
the crown, or as it was expressed, in contempt of the doctrines 
of the Holy Alliance, the right of Ferdinand to succeed, in the 
lifetime of his father, to the crown, to which he was called by 
the voice of the nation. The indignation of the whole body of 
the people was sufficient to animate them to endure the first 
brunt of Napoleon's power ; but to excite and support their 
courage during a long and bloody struggle, with so powerful a 
foe, it was necessary to present some other motive besides the 
wrongs of Ferdinand. The insult to the national honour, though 
keenly felt and warmly resented, would in time have been for- 
gotten. Men will not wage an eternal war for a point of honour, 
and it was feared, that the people would soon see that it was 
only a change of masters, and that their old dynasty did not 
deserve so great a sacrifice as they were about to make for it. 
Besides, by the abolition of the inquisition, the sequestration of 
its property, the diminution of the number of monks and mon- 
asteries, the establishment of a national judiciary in the place of 
the seignorial courts, and by the reformation of the financial 
system, the new dynasty was conferring benefits upon the nation 
that would have soon wiped away the odium of its usurpation. 
The successes of the French, and the distress and w^ant of union 
among the Spaniards, were not without efiect ; and the patriot 
cause would probably have failed, if for the purpose of uniting 
the nation, enlisting, all on the side of its independence, and 
giving to the people some motive to resist, at the suggestion of 
the Marquis of Wellesley,the Spanish junta, (which had assumed 
the executive functions.) had not authorized the meeting of the 
cortes for the purpose of giving a better government to the king- 
dom. 

This body was well known to the Spanish nation as its su- 
preme and extraordinary legislature. Under the different 
names of concilium, used by Gothic legislature ; of curia, the 
term by which it was known during the twelfth century ; and 
of cortes, first assumed under Ferdinand the Third, it had been 
a constituent part of the government ever since the fall of the 



54 

Roman empire. Laws were usually passed in the king's coun- 
cil ; but the cortes was entitled to be called together and con- 
sulted on all extraordinary occasions ; and if any could ever 
be deserving of that epithet, it was when the royal family was 
treacherously withdrawn from the kingdom, the soil invaded, 
and the people looking for leaders to direct their efforts against 
those who sought to subvert their independence by fraud and 
violence. The powers of this body, and the mode of calling 
it together are not well defined ; but sufficiently so to show, 
that it had not exceeded its authority in framing the constitu- 
tion. Like all the European constitutions, the Spanish was a 
collection of precedents from the history of the nation. The 
king and the legislative body claimed to do whatever had been 
done before by any of their predecessors ; and enough of con- 
tradictory precedents might have been found during the past 
ages of violence and ignorance, to authorize almost any exer- 
cise of power, by either branch of the government. The cortes, 
however, was entitled to very great authority from the earliest 
history of Spain. It had often sat in judgment upon the sove- 
reigns of the nation. Ramiro IlL, Queen Urraca, and Henry 
IV., were severally deposed by this body ; and when the Pope 
sent his legate to restore the last named monarch to his throne, 
one of the nobles, in the true spirit of Castilian freedom, told 
him in full assembly, that " he and the nobility of the realm 
would depose a king on just causes, and set up such as they 
thought suited to the public good." It also held the public 
purse, until the discovery of America gave other means to the 
king, by which he was enabled to dispense with the cortes. A 
body possessing such transcendent powers, in such an emer- 
gency had an undoubted right to alter the constitution. No 
royal consent or formal charter could make such an alteration 
more binding. To say nothing of the inherent right of the peo- 
ple to consult their own safety, the most obvious rules of Eu- 
ropean politics justified, and the laws of necessity commanded 
that course. No objection could be made to the manner in 
which the cortes was assembled, as Ferdinand had, by a decree 
of May 5th, 1808, authorized any council or audience at liberty 



55 

to summon the cortes. In 1810 the members met in the Isle 
de Leon, and after much unnecessary debate formed the con- 
stitution of 1812. It was popular, and did in fact redress many 
of the grievances which had weighed so long and heavily upon 
the Spanish nation. With the hope of obtaining something 
like the common privileges of men, and a melioration of their 
political condition as held out to them by the cortes, this gallant 
people, with British aid, resisted the power of Napoleon, until, 
by his reverses in the North of Europe, he was compelled to 
withdraw his troops from Spain, to release Ferdinand, and re- 
store him to his devoted subjects. 

With the government thus formed, Great Britain and Russia 
did not think it unlawful to enter into an alliance ; England, at 
the commencement of the Spanish war, and Alexander, w hen 
Napoleon had invaded his territories and threatened his subju- 
gation. At this juncture no doubts were entertained by the 
Russian Court of the legitimate formation of the government, 
or of its power to do all the acts of a sovereign authority. It 
had declared war, formed alliances, altered the constitution, 
and meliorated the social condition of the common people, in 
order to secure their affections, and to confirm and animate 
them in their resistance to their invaders; and while these 
things were done to resist the power of revolutionary France, 
no objection was made to their right so to do. But when Fer- 
dinand had recovered his freedom, and was restored to his here- 
ditary crown, which had been preserved to him only by the 
energy of the Spanish liberals, and the courage of the populace, 
(for the Spanish courtiers succumbed to the French,) the scene 
was changed, and principles operated in another manner. The 
constitution had been adopted in the absence of the king, and 
of course (according to the doctrine of the Holy Alliance) 
without any legitimate authority, and it depended upon him, 
when he resumed the reins of government, to sanction or dis- 
allow it. His intentions on that subject were not long doubtful. 
After leaving Paris, Ferdinand, carefully avoiding the Atlantic 
frontier of Spain where the English troops were stationed, took 
a circuitous route for Valencia, where he staid nearly a month? 



56 

probably arranging measures with his monarchical aUies. On 
the 4th of May, directly after the departure of Bonaparte for 
Elba, and simultaneously with the rejection of the constitution 
of France by Louis, Ferdinand, with the concurrence of his 
courtiers, and supported by a powerful army, issued a procla- 
mation annulling the constitution, dissolving the cortes, and pro- 
scribing that party, by which the privileges of his family and 
the national independence had been so nobly vindicated. It 
is a fact worthy of note, as indicating the interest which the 
Bourbon family in France took in the destruction of the popular 
party in Spain, that during this interval of suspense, the French 
journals were filled with paragraphs abusing the leaders of that 
party, and intimating that they had determined to rebel against 
the king. After this explicit declaration, Ferdinand proceeded 
with great vigor in the royal regeneration of his kingdom. His 
first care was to regulate the press, which was done by an edict 
of the r2th of the same month. The editors of the Redactor, 
and the Conciso, who had with the greatest energy maintained 
the cause of their country against Napoleon, were arrested, and 
subsequently sentenced to the gallies for tenyears. The church 
property was restored. The inquisition was re-established, and 
united more strongly to the crown. The seignorial courts were 
reorganized. The council of the Mesta was reinvested with the 
power of ordering the merino flocks to traverse the kingdom, 
to the great detriment of the agricultural part of the commu- 
nity ; and all the odious abuses of the ancient government were 
re-established in their former vigor. The principal members of 
the cortes, the patriot generals and their supporters, were thrown 
into prison, to the number of more than four thousand, and the 
gallies, castles and dungeons, the garrotte and inquisition, were 
all put in requisition, to punish those who had been so audacious 
as to assert the independence of Spain for the sake of the 
nation, and not for the sake of the king alone. To such an 
extent was this system of proscription carried, that the prisons, 
not being sufficient to contain the victims of royal vengeance, 
a Franciscan convent was converted into a state prison, and 
many persons sought refuge in other countries. 



This persecution was not quietly submitted to. After the 
return of Ferdinand, scarcely a year passed without some se- 
rious rebellion. Although the joy felt in the national triumph 
over the French, and in his rescue and restoration, afforded 
him the best foundation for great personal popularity, so dis- 
gusted were his subjects at his ingratitude and tyranny, that 
within four months after his return, the provinces of Navarre 
and Andalusia were the seats of revolt ; and to prevent the ex- 
tension of disaffection, the government were compelled to send 
troops into the provinces of Estremadura, Arragon, Castile, 
Catalonia, and Valencia, and permanent councils of war were 
established in each province for the immediate trial and execu- 
tion of persons arrested. The subsequent insurrections of 
Mina, Porlier, Lacy ; those at Barcelona, Valencia, Cadiz ; the 
partial commotions in other parts of the kingdom ; and the 
general insubordination, all indicated a settled and permanent 
dislike to the anti-constitutional measures of Ferdinand, by no 
means inferior to that first excited. Whilst this dissatisfaction 
was increasing, the government was losing its official and natu- 
ral strength, by an imbecility and mismanagement on the part 
of its ministers, only to be equalled by the ingratitude and ty- 
ranny of its head. The navy dwindled to a shadow, the army 
badly fed, paid and clothed, and the finances in such a state of 
disorder as to be inadequate to defray the ordinary expenses of 
the municipal department, all showed the royal government to 
be hastily tending to dissolution. 

Such was the state of affairs in 1820, when the constitution 
of 1812 was re-established, that constitution which had been 
formed to remedy the most deplorable condition to which a 
civilized country had ever been reduced. From being the most 
powerful kingdom in Europe, Spain had become the weakest. 
With a fertile soil and delicious climate, it was the abode of 
famine. With the mines of Mexico and Peru at its disposal, it 
was poor ; and it possessed the monopoly of the most fertile 
and largest colonies in the world, without having either com- 
merce or manufactures. Its rulers seemed to study political 
economy only to contradict its precepts by their practice, and 

8 



58 

the eflorts of government were solely directed to brutalize the 
intellect and paralyze the energies of its subjects, and to ini- 
poverish and depopulate the country. Neither did the honour 
of Spain receive more efficient protection from its proper guar- 
dians, than its political prosperity. While the other monarchs 
of the continent were the helpless victims, or reluctant instru- 
ments of Napoleon, Charles IV. became his willing agent. The 
soldiers, navy and wealth of the kingdom were employed in 
increasing the preponderance of an already too powerful neigh- 
bour. The strongest frontier of Europe was passed, and the 
impregnable fortresses of Spain were surrendered without 
resistance ; and the whole court, the old king and new, the 
weak father and usurping son, with their attending nobles, from 
a state of freedom, and while their fertile colonies oifered them 
an ample empire and a secure asylum, went to Bayonne to 
place their persons and fortunes in the power of the French 
Emperor, with the same weakness and irresolution, with which 
the inferior animals vield to the fascination of a rattlesnake. 
Was there not, in this state of things, a sufficient justification of 
a new organization of the government? Even if the royal 
family had been on the throne, a revolution would have been 
justified by the destruction which threatened the nation from 
the maladministration of the government. But in its captivity 
the circumstances altogether form a defence of the conduct of 
the cortes and nation, in the adoption of the constitution, that 
places it beyond the reach of censure or doubt. To deny this 
proposition would be to contend, that the nation was bound to 
acquiesce in its own destruction ; unless the king was in a state 
to command it to act with a view to its safety. The whole 
theory of government would be overturned, and its great 
object, the welfare of the subjects, sacrificed for the benefit of 
the rulers. 

Such in truth is the essence of the principles of the Holy 
Alliance. Government is by its leaders considered as estab- 
lished for the benefit of the privileged orders, and the people 
are never to be mentioned, except when it is necessary to in- 
vent an excuse for some new encroachment upon their rights, 



59 

^r some violation of public law. Thus, under the pretence of 
guarding them from themselves, they are to be debarred from 
all interference in their government; and all reform proceeding 
from a popular quarter is to be opposed and crushed by foreign 
powers, lest the happiness of the subjects should be disturbed 
by revolutionary excitement. Any revolution to extend the 
royal prerogative may be tolerated, but one having popular 
rights for its object is illegal. In what, excepting in the party 
to be benefited by the change, did the overthrow of the con- 
stitution in 1814, differ from its re-establishment in 1820 ? The 
army, in both instances, was the immediate instrument. Then, 
we ask, had Ferdinand, upon his return from a captivity from 
which he had been redeemed by the valour and perseverance 
of his subjects, a greater right to overthrow a constitution with 
which they were satisfied, than they had to re-establish it, when 
that was the only way to the regeneration of their sinking go- 
vernment ? What gave him the right to disapprove of that 
constitution ? He had it not as heir apparent to the «rovvn. 
The heir only succeeds to the right of his ancestor, and Charles 
then living as monarch of Spain, could grant, according to the 
principles of the legitimate party, a charter to his subjects ; a 
charter, too, not to be violated by his successors. During the 
life of Charles, therefore, the disapprobation of his son could 
not annul the constitution. 

But it may be said, Ferdinand was king of Spain by virtue of 
his father's abdication. This abdication, however, was caused by 
a popular commotion, and it was void, according to the doctrines 
of the Holy Alliance, as the abdications of the kings of Naples 
and Sardinia had also been considered. The people, in 1808, 
finding the public affairs mismanaged, through the fondness of 
the old king for Godoy, rose tumultuously, and to prevent them 
from proceeding to extremities, Charles abdicated in favour of 
his son. This change in the government was sanctioned by the 
Congress of Vienna, and the continuance of Ferdinand on the 
throne was " constituted part of the order of things" at the general 
pacification. Ferdinand therefore owed his throne first to the 
will of his subjects, and subsequently to their courage ; and it 



60 

must be granted that the power which first gave to him his poH- 
tical authority, might, under hke circumstances, either wholly 
deprive him of it, or so limit it, as to promote the public welfare. 
Besides, the great justifiable causes of a revolution still existed. 
The situation of Spain in 1820, was, if possible, more deplorable 
than in 1808. The public and private distress was greater. The 
colonies which, at the time of his accession, were attached to 
the mother country, were forever separated, and the resources 
and armies of the kingdom were squandered in ill directed at- 
tempts to reduce them to submission. The navy was no more ; 
the finances were in the greatest confusion, and with all these 
causes of complaint, the people were goaded to desperation by 
the tyranny of the inquisition and the government, and their in- 
dignation was roused by the unmerited persecution of the most 
distinguished leaders and gallant generals of the patriot party. 
If, then, the revolution which placed Ferdinand on the throne was 
not contrary to the public law of Europe, much less was that of 
1S20, which limited his authority, and directed its exercise to 
the promotion of the public prosperity. It was to restore a con- 
stitution lawfully established and generally acknowledged ; but 
which had been overthrown by the illegal violence of the military 
and of their ungrateful sovereign. We have been thus particu- 
lar in the history of the Spanish revolution, that our readers 
might fully understand the grounds upon which the contest rests, 
and that it is for no other object than to strengthen the arbitrary 
party. The indefeasible right of the monarchical part of the 
government is no more sacred in the eyes of the alliance, than 
any other principle, except as it contributes to effect this great 
object of their combination. Those kings who had not entered 
into their designs, were treated with as little ceremony as the 
popular party. If the royal right be indefeasible, it is equally 
so to a part of the kingdom as to the whole. Yet Norway was 
wrested from the King of Denmark by the allies, in violation of 
that right, and part of Saxony shared the same fate. These facts 
prove that their peculiar regard for the monarchical principles 
was only a pretence ; but the Spanish revolution was a peculiar 
and striking instance, which at once illustrated the nature and 



61 

extent of their designs. With that revolution the aiUance finally 
determined to interfere, and France was deputed to restore the 
ancient order of things, inquisition and all. This appears by the 
St. Petersburg Imperial Gazette of June 12, 1823, where in one 
of the half official papers of the Russian Court, it is asserted, that 
France acts in behalf of the alliance, by the invitation of that 
body, as Austria did against the Neapolitan and Piedmontese 
revolutions ; and the inquisition is spoken of as one of the pillars 
of the Spanish monarchy. In justification of this attack upon 
the independence of a powerful kingdom, it was not even pre- 
tended, that the Spanish revolution had been attended with those 
massacres, which roused the indignation of mankind against the 
Jacobins of France; and the charge that the Spanish liberals 
were instrumental in exciting commotions in that country, has 
been so fully disproved in a late number of the Edinburgh Re- 
view, and was so faintly urged and at such a period of the nego- 
tiation with the Spanish government, that it can only be classed 
with those pretences, with which the members of this alliance 
have so often sought to disguise the real motives of their mea- 
sures. But in this age such reasons can neither justify those 
who allege them, nor deceive the world. The British Court 
has become convinced of the unhallowed designs of its allies, 
and in the late diplomatic correspondence at Verona has mani- 
fested its determination not to sanction their proceedings. All 
enlightened and unprejudiced men seem to be now satisfied by 
the manifestoes delivered to the Spanish Court by the ministers 
of the allied powers, and by a thousand other simultaneous and 
kindred acts in other parts of Europe and towards other nations, 
that a combination has been formed by the three Northern 
courts, aided by the Bourbon parties in France and Spain, to 
preserve by foi'ce the ancient order of things from reformation ; 
and by subjecting the press to the authority of government, by 
supervising the universities, by the exile and proscription of the 
friends of liberal principles whenever they appear, by the re-es- 
tablishment of the inquisition in Spain, the erection of a central 
commission in Germany, and augmenting the strength of the 
police in other countries, to extirpate the apparent causes of all 



63 

revolutionary excitement ; or, in other words, to poison, at tiie 
fountain head, the streams of poHtical intelhgence and improve- 
ment. 

This is the unholy enterprise in which these statesmen have 
embarked. From their elevated stations they have foreseen 
the dangers which threaten their authority ; and instead of yield- 
ing to the manifest will of society, they have arrayed themselves 
in opposition to it. The spirits of tyranny and- bigotry have 
been awakened by the events of the last thirty years, and are 
rallying all their forces in support of the ancient establishments 
of Europe. A numerous and powerful party answers to the 
summons. It has possession of the armies, the police, and the 
finances of the continent ; but it is opposed by whatever has 
been and ever will be irresistible, — the spirit of the age. The 
increase of knowledge is constantly impairing the strength of 
this party, and augmenting that of the popular party. The abuse 
of their authority has rendered the mass of the community 
hostile to its leaders. Great Britain has deserted them, and 
they must fail in their attempts. Spain may be conquered by 
her own divisions and by the armies of France, (though we trust 
a different fate awaits that kingdom) — the noble and generous 
patriots of humanity may be more than once defeated and 
trampled down by the legions of the combined despots ; but 
the great cause of freedom will go on, gaining strength and 
diffusing happiness, until its triumph shall be consummated in 
the general melioration of the political institutions of the old 
world. Its martyrs leave examples of more efficacy than all 
their exertions while living, to animate and encourage their as- 
sociates. The generous blood of those heroic men, who testify 
their devotion to the cause of mankind upon the scaffold or in 
the field, does not sink into the ground, as water spilt in the 
desert ; but fertilizes and invigorates the soil of freedom, and in 
due season, like the teeth of the Boeotian Dragon, will spring up 
in a harvest of armed men. The infant minds of the active and 
enthusiastic, who, by their inborn talent and courage, are des- 
tined to lead their contemporaries, the nobility of God's creation, 
are deeply impressed with the great example, and thirst to 



63 

imitate it ; and whilst the institutions of society press so harshly 
upon the manners of the age, and militate so strongly against 
the most valued principles, they never will be without a motive 
to action. All the improvements of modern times ; the manu- 
facturing, mechanical, and scientific arts ; the literary institu- 
tions ; the interests of commerce ; and more than all, the free 
institutions of this republic, are indirectly opposed, and are 
constantly raising up enemies to the aristocratic party. They 
must ultimately effect its downfall. It has entered into a contest 
in which it cannot be successful, until those causes, which con- 
tribute to the continuance of society, shall have ceased to operate. 
The manners, feelings, and opinions of living men must be 
totally changed ; a new inheritance of thought must be be- 
queathed to their descendants ; commerce, literature, and the 
chief productive arts must be destroyed ; the tide of improve- 
ment must flow back, and then, but not before, can the doctrines 
of the Holy Alliance be re-established in their primitive security. 
In the contest between a party thus destined to prevail and 
another so determined to resist, in which the very foundations 
of civilized society must be shaken, it is not impossible that 
much may take place, which the friends of liberal principles 
cannot approve. The passions of the multitude, never under 
the strictest subjection, when emancipated from the severe 
bonds of despotic government, may lead them into excesses 
that will cast a stain upon the popular cause. We hope that 
this may not be the case ; but if it should, to whom ought those 
excesses to be attributed 1 Not to the friends of freedom, not- 
withstanding their followers may be the immediate actors. The 
efficient cause often lies beyond the apparent agent. Subjects 
have rights and feelings as well as their rulers. Their passions 
are excited at any violation of these rights, and their indignation 
and anger become uncontrollable. When their attention is 
once attracted to their political interests, and tlie subtlety, 
hypocrisy, and injustice of the privileged orders, and their 
open and secret opposition to any political reform, are made 
manifest to their understandings ; it is folly then to charge upon 
the lower classes, the guilt of those atrocities which may be 



64 

committed in a contest between them and the supporters of the 
ancient order of things, brought on by the opposition of the 
latter to a reformation, that was called for by the exigencies of 
society. The consequences to which we allude are the neces- 
sary result of such conduct in such a state of society. The 
operation of circumstances and principles upon men in the 
mass, may be foretold with as much certainty, as any of the 
phenomena of the natural world ; and if kings and their min- 
isters, with all the lights which are afforded to them by their 
high stations, will oppose the spirit of the age, their destruction 
is upon their own heads, as much as if they had placed them- 
selves in the channel of a torrent, when they heard the storm 
gathering in the mountains. 

It cannot be expected, that a contest involving such import- 
ant principles, portending such momentous results, affecting so 
many interests, and upon so extensive a theatre, should pass by, 
without affecting us in a national point of view. The exercise 
of belligerent rights upon our extended commerce must present 
many causes of offence. Besides, the nature of the contest is 
such as almost necessarily to involve us in disputes with one of 
the great contending parties. If success should favour the 
allied monarchs, would they be satisfied with reforming the 
government of Spain? Would not the Spanish colonies, as 
part of the same empire, then demand their parental attention? 
And might not the United States be next considered as deserv- 
ing their kind guardianship ? Would this government be likely 
to receive more indulgence than that of Spain ? Its example 
does infinitely more hurt to the cause of despotism than ten 
Spanish revolutions. Its very existence is an attack upon the 
monarchies of Europe ; its economy is a reproach upon their 
wild extravagance ; and its policy condemns their ambition, 
their unnecessary wars, and their whole political system. In 
this contest, though not active, this republic is their most effi- 
cient enemy. She appeals to the feelings and interests of men, 
and creates allies and enlists armies in the camps of her antago- 
nists. The wishes of our citizens, too, are all on the side of 
the liberal party. These circumstances, connected with the 



65 

jealousy with which our republican institutions are viewed by 
the European courts, may produce a state of feeling, that will 
not improbably result in direct hostility, and it is not impossible 
that the extravagant pretensions of the Russian Emperor in the 
Pacific, are only the first steps to a series of usurpations, which 
we cannot resist without war, nor submit to without dishonour. 
Neither is it by the active interference of the allied courts 
alone, that our pacific relations may be disturbed. Our insti- 
tutions, feelings, and domestic policy, indeed, place us in oppo- 
sition to them ; but our foreign policy is equally opposed to the 
commercial systems of the governments advocating liberal 
political principles. The national policy of the United States 
is founded upon two great maxims, just and equal laws at home, 
and reciprocal commerce with foreign nations. The history 
of the country, our wars, treaties, negotiations, and our statutes, 
fully illustrate this proposition. This commercial system is 
directly opposite to that which has always governed the great 
powers in opposition to the Alliance. Spain, when in posses- 
sion of her South American Colonies, scrupulously debarred 
all intercourse with those fertile countries. If by this revolu- 
tion she should attain any great physical force, whatever party 
may rule over the kingdom, it is not probable that the govern- 
ment will acquiesce in their total separation, without making 
some final and vigorous eflforts for their subjection. Whether 
she should attempt this unaided by her allies, or with the assist- 
ance of the Holy Alliance in case of the success of the despotic 
party, or of Great Britain, provided the latter should, by the 
length of the contest and the violence of the alliance, be com- 
pelled to side with Spain, is immaterial. In either event it will 
present a fruitful field of dispute and controversy. The United 
States have acknowledged the independence of the Spanish 
Colonies ; their citizens are engaged in extensive and flourish- 
ing commerce with them, and no attempt can be made to sub- 
jugate these new powers, without bringing our interests and 
rights in direct conflict with the pretensions of the invaders. 
If England should join Spain in her contest with France, the 
chance of this country's remaining at peace will be still more 

9 



m 

diminished. Great Britain is a greater monopolist of the com- 
merce of the world than even Spain. Her commercial system 
has extended itself into every quarter, and has been everywhere 
followed and supported by her wealth, her intrigues, and her 
arms. In America, Europe, Asia, and Africa, it is seen and 
felt, grasping and monopolizing the commerce and carrying 
trade of ail nations. Every war has its preservation for an 
object, and every negotiation tends to extend and perpetuate 
it. With nations, advocating a system so opposite to ours, and 
with interests clashing with those of this republic at so many 
points, it will be next to impossible, in the agitation and tempest 
of a general political conflict, to preserve our harmonious rela- 
tions, and we should be prepared to maintain our rights in the 
manner in which the rights of such a people should be main- 
tained. These considerations will doubtless induce the govern- 
ment of this country to preserve a rigid and scrupulous neu- 
trality between these great parties. It is indifferent between 
them. Our feelings as freemen and men are indeed warmly 
interested in the success of Spain ; but our national interests 
are opposed to that policy which its government would proba- 
bly adopt in conformity with the public feeling of the nation, 
and a too hearty adoption of their cause would compromise 
some of our best interests in case of its success. But while 
this government should preserve a strict neutralityy it should be 
an armed neutrality. It is an unwise and unsafe presumption 
to trust to the equity and forbearance of nations at war. In 
all wars the rights of neutrals are too apt to be regarded by 
the belligerents in a secondary point of view. Under the pre- 
tended sanction of some new principle of national law, their 
commerce is daily subjected to some vexatious interruption, as 
this country has already ascertained by dearly bought experi- 
ence. The questions constantly arising between belligerents 
and neutrals as to their respective privileges, are tenfold in- 
creased in wars concerning opinions, in which the chief civilized 
powers are engaged for the purpose of supporting or over- 
throwing any particular system. The elements of society are 
then in agitation, and the public mind is alive to start and settle 



67 

new principles in politics and jurisprudence. To vindicate the 
rights of this country in such a crisis, the government must be 
able to defend its cause by other means than sound logic. We 
have not yet arrived at that Utopian age when redress will 
follow the perception of injustice, and there is still enough of 
uncertainty and confusion in national law to warrant discussion 
upon many of the most important privileges of neutrals. New 
and equally important questions will probably arise, and if we 
would enjoy the dignity and privileges of an independent neu- 
tral, and would give force to our remonstrances and negotia- 
tions, we must be prepared to back them with those more 
weighty reasons that are reserved for the peroration of a na- 
tional argument. 



AMERICAN INSTITUTE. 



June 5th, 1828. 

Mr. Blunt, from the Executive Committee, brought in the 
following report : 

The Executive Committee, having taken into consideration, 

according to the resolution of the Institute, the means best 

adapted to encourage such manufactures, as shall most conduce 

to the permanent interests of the country, and render this city 

the great depot of American fabrics, beg leave to report, that 

it was not deemed expedient to enter into an examination of 

the policy of a high tariff, for the encouragement of domestic 

industry. This was not considered as necessarily coming within 

the scope of the resolution. The policy of the country, by the 

late tariff, and that of 1824, maybe considered as settled; 

and in conformity with the general sentiment of the inhabitants 

of the United States, it has resulted in favour of protection. 

Whilst the confederacy continues under one government, it 

cannot be doubted that the local interests of New- York will be 

better consulted, by harmoniously co-operating with the mass of 

the community, and accommodating her pursuits to the national 

policy ; than by making a vain opposition to a policy finally 

settled and solemnly promulgated, and foregoing all the benefits 

resulting from her natural and acquired advantages, because 

unable to realize her desires to their fullest extent. Whatever 

may be the opinion in this community as to the details of the 

present tariff, and as to its effects upon the various branches of 

domestic industry, it is manifest that the United States now 

are, and have been from their first settlement, in a progressive 

state, so far as it regards manufactures. From a state of de- 



70 

pendence upon Europe for the comforts and necessaries of life, 
they have advanced to a hight point of improvement and com- 
parative independence. At different periods, new manufactures 
have been estabhshed in the country according to its w^ants, 
and its increasing abihty to supply them from its own resources. 
There is no characteristic of our history more marked than the 
astonishing rapidity with which the mechanic arts and the use- 
ful manufactures have been established in the United States ; 
and it seems to be their appropriate destiny to transfer the arts, 
the manufactures, and the civilization of Europe, to America, 
and to naturalize them in a new world. 

A comparative view taken of any two periods of time, de- 
monstrates this proposition. 

Indeed, nothing is more certain than that an exchange be- 
tween two nations, in the temperate zones, of agricultural pro- 
ducts for manufactures, cannot be a permanent commerce, 
except where the country furnishing the raw materials is either 
in a colonial state, or too poor or ignorant for manufacturing. 

The history of the British settlements in America strikingly 
illustrates this remark. Before the revolution, their exports 
were solely the productions of the soil. Their emancipation 
from their colonial shackles gave a new direction to their in- 
dustry ; and although the distracted condition of Europe, during 
the first twenty-five years of their existence as an independent 
power, created an extraordinary demand for agricultural pro- 
ductions, the manufactures of the country acquired stability and 
strength, and had attained so high a rank among the branches 
of national industry, as to constitute one twentieth of our do- 
mestic exports on an average of the years between 1803 and 
1811. Since the general peace in the old world, a still greater 
alteration has taken place in the employments of the inhabitants 
of this republic. 

Less demand has existed for our produce ; new manufactures 
have sprung up in the country ; and under the fostering influ- 
ence of the tariff" of 1824, they have suddenly advanced so as 
to compose more than one tenth of our domestic exports ; being 
in 1820, in the proportion of 85,852,000 to $52,528,000 ; and 
in 1827, of 86,386,000 to 858,368,000. 



71 

Such rapid changes in the condition of a country, all tending 
to augment its wealth and resources, justify a modification in 
its policy to suit its varying circumstances. As the channels of 
trade vary, new means of employment must be devised, and it 
is an indication of true wisdom, on the part of the government, 
to modify its laws, so as to promote the prosperity of its citizens, 
and to secure to them the largest share of the navigation be- 
tween the United States and other countries. We give this 
preference to navigation, not only because it is that branch of 
domestic industry most exposed to foreign competition, and of 
course most entitled to protection ; but because, as an import- 
ant arm of national defence, it amply repays in war the protec- 
tion it receives in peace. We do not mean, that the prosperity 
of navigation should be promoted by the sacrifice of the other 
great branches of national industry. On the contrary, it must 
depend on their success. Commerce is only the exchange of 
the excess of the productions over the consumption of a com- 
munity, for the surplus products of other countries ; and its 
permanent prosperity must be based upon the flourishing con- 
dition of the agricultural and manufacturing classes. In regu- 
lating the terms upon which these exchanges are to be made, 
sound policy dictates a due consideration of the relative wants 
of the communities trading together, and their ability to supply 
the materials of a mutually profitable commerce. It is only in 
that manner that an extensive commerce can be encouraged 
and secured ; and in framing the permanent and fundamental 
commercial regulations of the United States, care should be 
taken to form them so as to promote their trade with those 
countries, whose natural productions are most in demand here, 
and whose inhabitants depend upon us for the supply of their 
wants. 

The fertility of the soil, and the rich and varied productions 
of the southern portions of this continent, their relative position 
to the United Slates, the habits and employments of their in- 
habitants, and their deficiency in capital and manufacturing 
skill, all designate those new communities as our best and most 
permanent customers. The sudden and simultaneous opening 



72 

of those vast regions to the trade of the world, by their emanci- 
pation from Spain, and that at a time when, by the return of the 
inhabitants of Europe to the employments of peace, the demand 
for our agricultural productions was dimished, justified the go- 
vernment in encouraging at home the means of furnishing the 
materials of a new commerce, which promised full remunera- 
tion for the sacrifices consequent upon its first establishment. 

The trade between the United States and South America 
must be an exchange of manufactures for the natural produc- 
tions of a fertile soil in a warm climate ; and in order to secure 
and augment it, encouragement must be afforded to the deve- 
lopement of the mechanical skill of our citizens. We do not 
mean to say, that that encouragement has been given by the 
tariff lately passed. On the contrary, we think it impolitic in 
its details, peculiarly oppressive to the navigating interest, and 
intentionally rendered so by an opposition to the policy, which 
passed the bounds of prudence and patriotism. The propriety 
of this act, however, is not now the question. Whatever may 
be our opinion as to its policy, it is now the law of the land ; 
and capital must be invested, and commercial enterprises under- 
taken, with reference to its details. Some change will take 
place in the direction of our trade ; and commanding as the 
position of New-York is, in relation to the commerce of the 
country, she must enjoy her full share of any advantages grow- 
ing out of this alteration in our policy. Our productions must 
be exchanged, as heretofore, for the surplus productions of other 
nations ; and New-York, as formerly, must be the great depot 
and mart of exchange. The only question is, how to avail our- 
selves, to the utmost, of this change in the national policy by 
means of our local advantages. So far as the fabrics of Ame- 
rican skill and industry supply the place of European manufac- 
tures, whether for domestic or foreign consumption, they must 
become the objects of commerce. Vessels must be employed 
to transport them, and merchants and factors must superintend 
their distribution among the consumers. Every effort, then, 
should be made to render this city the great depot of domestic 
manufactures, as well as of the productions of other countries; 



73 

and to conform, according to our circumstances, to the fiied 
and settled policy of the country. 

In Boston, extraordinary exertions have been made to turn 
the trade growing out of this system into that port, and to make 
that city the emporium of domestic manufactures. A semi- 
annual fair has been established, to induce purchasers and man- 
ufacturers to resort to that market. The effects of these spirited 
measures upon the navigation of that port are already visible. 
Hitherto the increase of tonnage has been greater in New-York 
than in any of the large ports ; but during the last year a sen- 
sible superiority has been manifested in favour of Boston. 
While the annual increase in the tonnage of New- York has 
been only 11,805 tons, that of Boston has amounted to 19,105 
tons; being only 4 per cent, increase in this port, and 13 per 
cent, in Boston. During the same year, the rate of increase 
on the whole^ tonnage of the United States has amounted to 
7i per cent. This disadvantageous result on the part of New- 
York, compared with the Union at large, and more especially, 
when compared with the chief mart of domestic fabrics, indi- 
cates some falling off in the enterprise which has heretofore 
distinguished this community, or an inattention to the changes 
which have been made in the direction of domestic industry. 

Your Committee will not ask whether the inhabitants of this 
city will continue neglectful of their peculiar advantages — ■ 
losing on one side, without attempting to gain on the other. 
The field of competition is open to all ; and the enterprising 
character of New- York, and her superiority of position, will 
insure success in the contest. A fair to be held in this metro- 
polis in the spring and fall of each year, to which the manufac 
turers of the whole country might be induced to send their 
goods, by the high prices to be obtained in the principal market 
of the United States, as well as by premiums to be given to the 
best specimens of the different productions of domestic industry, 
would very soon render this city the emporium of American 
manufactures. 

The emulation excited by competition on such a theatre, 
would improve the quality of the goods ; while the character 

10 



74 

gained by success in this market would more than compensate 
for any extraordinary pains taken to improve their quality, by 
its general effects upon their sale. Purchasers, too, would be 
attracted to such a fair ; and this city would reap the advan- 
tages of a liberal distribution of premiums to the successful 
competitors, by an increase in its trade, and by the influx of 
strangers, in crowds, either to exhibit their fabrics, or as 
purchasers. 

In conclusion, your Committee beg leave to recommend a 
semi-annual fair, to be held during the second weeks of October 
and April ; and with the view of rewarding the skill of the Ame- 
rican mechanic and manufacturer, your committee recommend 
premiums to be awarded, under the superintendence of the 
American Institute. 



ARGUMENT 



IN THE COURT OF IMPEACHMENTS AND FOR THE CORRECTION OF 
ERRORS OF THE STATE OF NEW- YORK. 



Charles King and Johnston Verplanck, Plaintiff's in Error, 

vs. 
Erastus Root, Defendant in Error. 



Joseph Blunt opened the argument for the plaintiffs in error. 

This action, he stated, was brought for a pubHcation in the 
New- York American, alleged to be libellous, and made under 
the following circumstances : 

During the presidential election of 1824, an extra session of 
the legislature of New- York was called by the governor, with 
the view of giving to the people, in their primary assemblies, the 
choice of the members of the electoral college of this state. 

A powerful party in the legislature, favouring the election of 
Mr. Crawford, was opposed to this project ; and while it was 
warmly urged upon the legislature by a large portion of the 
community, it was as warmly resisted by others. Great excite- 
ment was produced, and the attention of the whole state was 
directed upon the proceedings of the legislature at Albany. 
The meeting took place at a season of the year, when Albany 
was thronged with strangers, and the capital was daily filled 
during the session with intelligent and distinguished men from 
the different states of the confederacy. On this striking occa- 
sion, in the presence of an assemblage comprehending many of 
the most influential and illustrious names of our country, the 
plaintiff, who is the defendant in error, while presiding over the 
senate of the state, conducted himself in a manner which induced 
one of the defendants, who was then in the senate chamber, to 



76 

make the publication complained of, giving an account of his 
appearance and conduct at that time, and to animadvert upon 
it in language, which such conduct fully deserved. 

I do not mean to contend in this place, that this account was 
accurate. This I am precluded from doing by the verdict of 
the jury. All that the defendants are required to show is, that 
they fully believed that their account was correct, that they had 
good reasons for believing it, and that they made no intentional 
misrepresentations. 

If thatw^ere the case, no language could be deemed too harsh 
and severe in commenting upon acts, which degraded not only 
the station filled by the plaintiff, but reflected discredit upon the 
people of the state, and the body over which he presided. A 
citizen, attached to our institutions, and zealous for their charac- 
ter, and forming such conclusions from what actually passed 
before his eyes, would be filled with indignation, and his justly 
excited feelings would manifest themselves in strong and appro- 
priate expressions. 

Such was the impression made upon the mind of the defendant^ 
who wrote the libel in question, by the conduct of the plaintiff. 
Believing him to have been intoxicated on that occasion, he did 
not hesitate to say so ; and he animadverted upon his situation 
in terms of pointed severity. 

For so doing this action was brought by the plaintiff, and the 
venue was laid in Delaware county, the place of his own resi- 
dence. The defendants sought to have the trial take place either 
in Albany, where the transaction occurred, or in New-York, 
where many persons, who were present at the time alluded tOj 
resided. 

This motion was resisted by the plaintiff, and upon the pretence 
that he had as many witnesses in his own county as the defend- 
ants had in New-York, (although he stated in his deposition 
that he was unacquainted with their names,) the venue was re- 
tained in Delaware. 

Under such circumstances the trial came on, and the defend- 
ants acting in good faith and under the impressions which in- 
fluenced them in publishing the libel, attempted to prove it to 



77 

be true. With this view they introduced several witnesses who 
were present on the occasion referred to, all men of the highest 
character in both public and private life ; — three members of the 
senate, — two gentlemen who now represent their country at 
different courts of Europe, — and three others who were also 
present, and who all stated that the description given of the 
plaintiff in the alleged libel was substantially true. Indeed, 
the statement given by them fully justified the publication, and 
the judge who tried the cause charged the jury, that " there was 
no doubt of the entire credibility of every witness upon either 
side. They were gentlemen of the first integrity and intelligence, 
and no inducement could be supposed in the case sufficient to 
lead them to misrepresent or withhold any fact within their 
knowledge." In addition to this testimony, they proved that it 
was currently reported in Albany at the time, that the plaintiff 
was intoxicated in the senate on the occasion alluded to : and 
the character of the plaintiff as an habitual and notorious drunk- 
ard was established beyond all controversy. 

On the other hand, the plaintiff produced several witnesses, 
who stated that they were also present in the senate, and that 
in their opinion he was not intoxicated. They did not, however, 
attempt to deny that his character for sobriety was bad. 

After a full discussion of the testimony, the honourable judge 
who tried the cause charged the jury, and they'retired. After being 
out all night they came in, and upon his reiterating a portion of 
the charge to which exception had been taken, they rendered a 
verdict for $1,400 in favour of the plaintiff. 

The Supreme Court was moved for a new trial, on exceptions 
to the legal principles advanced in the charge of the judge, and 
also on the ground, that the verdict was contrary to evidence. 
This motion having been denied, a writ of error was brought 
on the bill of exceptions, and the cause is now here for a re- 
version of the legal doctrines laid down at the trial of this cause. 
The grounds urged upon the consideration of the Supreme Court 
are comprehended in the following propositions : 

1st. Proper testimony was excluded from the consideration 
of the jury. 



78 

2d. The judge ought, when required so to do, to have charged 
the jury that if they beheved the pubhcation to have been made 
in good faith, and with a full belief in its truth, these circum- 
stances should induce them to mitigate the damages. 

3d. The question of malice ought to have been submitted 
upon all the evidence, as a question of fact for the decision of 
the jury. 

It is to be observed, that at the trial of the cause, the defend- 
ants were not permitted to inquire into the general habits of 
the plaintiftTor temperance, not even upon cross-examination. 

The testimony concerning the prevalence of the concurrent 
reports at Albany as to the ])laintifF's conduct in the senate on 
the occasion alluded to, was also excluded from the considera- 
tion of the jury, as well as the evidence of the general character 
of the plaintiff for intemperance, unless it appeared to be equal 
in degree with the offence charged. They were told that this 
testimony was not to be taken into consideration by them ; not 
even in their estimation of damages ; and this opinion concern- 
ing general character was reiterated, when the jury, puzzled as 
some were at the charge, came into court for new and clearer 
directions. 

The jury were also told, and this formed one of the principal 
objections to the charge, that they were simply to inquire 
whether the plaintiff was intoxicated, as described by the defend- 
ants. The intention and motives of the defendants in making 
the charge, their belief in its truth, were excluded from their 
consideration. Their malice, it was stated, and emphatically 
stated by the judge, was a legal inference ; a conclusion of law 
from the falsity of the publication ; and notwithstanding he was 
requested to direct the jury to inquire into the motives of the 
defendants, he refused so to do, but persisted in saying that their 
intention or malice was a legal inference. (Here Mr, Blunt read 
the charge of the judge. Vide Am. Ann. Register, for 1826-27, 
p. 247. and then proceeded :) 

When this opinion came before the Supreme Court for revi- 
sion, the court did not altogether confirm all the positions of the 
judge at circuit. 



79 

It assumed a new ground, and one which enabled it to avoid 
deciding directly upon all the questions submitted for its con- 
sideration. 

The judge at the circuit charged the jury, that inasmuch as 
the defendants had professed to state what they saw, no con- 
current reports at Albany of the plaintiff's drunkenness were 
admissible in mitigation of damages, as showing the belief of 
the defendants in their statement. The supreme court, per- 
ceiving this ground to be untenable, assumed a different one, 
and observed that the notice of justification accompanying the 
plea of not guilty, was an admission of malice, and therefore 
no evidence short of proving the truth of the charges was ad- 
missible in mitigation of damages, as showing the motives of 
the defendants. 

This was a new ground, but still it as completely excluded 
the evidence offered in mitigation, as that assumed by the judge 
at circuit ; and it will be incumbent on us, in reference to that 
point, to overturn both positions; and after reading the reasons 
advanced by the Supreme Court in support of its decision, we 
shall proceed to inquire into their validity, as well as into the 
correctness of those advanced by the judge at the trial. (The 
opinion of the Supreme Court was then read. Vide 'page 259, 
Am. Ann. Register, for 1826-27.) 

The first question, he continued, that we shall submit for the 
consideration of this court, grows out of the rejection of proper 
testimony, whether by the total exclusion of it by the judge, or 
by his charging the jury to disregard it in making up their ver- 
dict. In cross-examining the witnesses produced on the part 
of the plaintiff, they were asked, what were the general habits 
of the plaintiff as to temperance. This course of cross-exami- 
nation being objected to, was prohibited by the judge. 

What was the effect of this decision under the circumstances 
in which the cause was then placed ? The jury was inquiring 
into the condition of the plaintiff at a particular time. Several 
respectable witnesses on the part of the defendants said that he 
was intoxicated. Others produced by the plaintiff said, that in 
their opinion he was sober. The testimony was conflicting, 



80 

and it was the province of the jury to decide upon it. If, then^ 
it had appeared, that it was the general and even invariable 
habit of the plaintiff to commence the day with strong and fre- 
quent potations, repeated as the day advanced, until the after- 
noon (the time concerning which the inquiry was made) would 
always find him completely under their influence, and in a state 
either of riotous or beastly drunkenness ; suppose that the proof 
to be produced would have established this as his invariable 
habit, (and we have a right to assume this as a fact,) what, then, 
was the effect of excluding it ? It deprived the defendants of 
strong corroborative evidence, which would have fortified and 
strengthened the statements of their witnesses. If his habit 
was to get drunk every day, their opinion that he was intoxi- 
cated on the afternoon alluded to, was more likely to be correct 
than the opposite opinion ; and the proof would have furnished 
the jury with a powerful reason to adopt their statement. 
Again, the motives of the defendants in making the publication 
were to be inquired into. Were they actuated by malice, or 
not? This was one of the questions the jury was compelled to 
pass upon; first, (as we shall contend,) in reference to the jus- 
tification of the defendants ; and secondly, in estimating the 
amount of damages. 

Was this proof thus excluded calculated to throw any light 
upon their motives ? In ascertaining this, we must inquire 
whether they believed the charge or not, and whether they 
would not be more likely to believe that he was intoxicated at 
the time alluded to, provided he was in the habit of daily in- 
toxication. 

There were obviously some peculiarities in his appearance, 
from which some of the spectators drew one conclusion and 
others drew an opposite conclusion. The defendants' witnesses 
inferred that he was drunk, and his own witnesses thought that 
he was sober. The jury, in inquiring into the motives of the 
defendants, were not only to ascertain which of these conclu- 
sions was correct ; but also whether a man might not have 
fairly inferred that the plaintiff was intoxicated, and whether 
the defendants had not formed that opinion in good faith. 



81 

in both points of view, therefore, the testimony was admis' 
sible, first, to fortify the conclusion drawn as to his intoxicated 
condition, and secondly, to exculpate the defendants from all 
malice in making the charge. In the latter point of view the 
judge erred in charging the jury, that the concurrent report at 
Albany was not admissible in mitigation of damages. 

If it was generally believed, that the plaintiff was in the 
condition in which he was described to be, it demonstrates that 
there was good reason to believe what the defendants published 
concerning him, and that the defendants believing it, were not 
actuated by malice in making the publication. That the de- 
fendants made the statement in good faith is a complete answer 
to all imputation of malicious falsehood ; and while malice 
forms a good ground for aggravating damages, the absence of 
malice aftords an equally good reason for mitigating them. 

These principles are so clear, that it is not a little remarkable 
that the judge should have ventured to charge in opposition to 
them, and the extraordinary reason he advanced for his extra- 
ordinary position deserves a particular examination. 

The defendants stated that "they saw what they asserted," and 
therefore, said the judge, no concurrent report could have pro- 
duced their belief in the charge. The honourable judge here 
fell into the common error of forming a general rule from par- 
ticular instances, not altogether similar to the case under con- 
sideration. 

If the charge had been made concerning a fact, about which 
an eye observer could have made no mistake, then the defend- 
ants' mode of stating it might have been evidence of malice. 
As if the defendants had stated, that they saw the plaintiff sen- 
tenced to an infamous punishment for a criminal offence. Here 
there could have been no mistake; and in stating that they saw 
what they stated, they evince malice by asserting what they 
must have known to be false. But when the charge is simply 
an inference from appearances, and men might honestly draw 
different conclusions from the same appearances, the fact that 
many drew the same inference, as to the plaintiff's condition, 
affords strong proof of the sincerity of their belief, and of their 

11 



82 

good faith in making the statement complained of. It is on© 
thing to be mistaken, and it is another to make an intentional 
misstatement, and although the injury to the plaintiff may be the 
same ; the motive of the defendant, which in truth is the sole 
foundation of what are called vindictive damages, is entirely 
different in the latter case, and ought materially to mitigate the 
damages. 

In the case of Wolcott vs. Hall, 6 Mass., 514, which was 
relied on in the Supreme Court to sustain the doctrine of the 
circuit judge, the reports ofiered in evidence were not contem- 
poraneous, and were rejected by the court on the ground that 
the reports might have been set on foot by the very slander in 
question. They were consequently properly rejected. This 
case is different, inasmuch as the reports were contemporaneous 
with the conduct alluded to, and the publication was subse- 
quently made in a New-York journal. The true rule is laid 
down in Leceister vs. Walter, 2d Campbell, 251, and con- 
firmed by this court, in the case of Paddocks vs. Salisbury, 2d 
Cowen, 814. There, a general suspicion that plaintiff was 
guilty of the offence charged, was admitted in mitigation of 
damages, and the doctrine is reasonable, as such a suspicion or 
belief prepares the mind to adopt the opinion on which the 
charge is founded. 

But the judge also said, at the circuit, that the concurrent 
report was not admissible, unless it appeared that defendants 
said nothing more than was reported at Albany. This was 
also an erroneous view of the principle. The principle is, that 
all mitigating circunwtances are admissible in mitigation. The 
proposition is so clear, and even identical, that an apology would 
be necessary for stating it, had it not been contradicted by such 
high authority. An exaggeration of a report is not so great an 
offence as a fabricated falsehood. The report showed that 
others entertained a belief, that the plaintiff was intoxicated at 
the time referred to ; and the different opinions of men, as to 
the degree of excitement under which he laboured, could not 
30 entirely alter the applicability of the rule, as to exclude the 
report from the consideration of the jury, in estimating the 
damages. 



83 

The judge was misled, by not preserving the distmction be- 
tween a case where the offence charged is different in cha- 
racter from that about which the report prevails, and where it 
only differs in dejrree, and not in kind. Here the offence was 
of the same character, and because the exact degree of intoxi- 
cation was not specified in the report, it is most extraordinary 
that the jury should not have been allowed to consider the con- 
current opinions of other persons, as to the condition of the 
plaintiff, even as a circumstance in mitigation^ that a general 
belief, which, if proved before the jury from the mouths of the 
multitude who were present, would have completely exculpated 
the defendants, shall not be regarded, even as a mitigating cir- 
cumstance. This is the doctrine of the judge, and it is, in itself, 
a doctrine so repugnant to reason and common sense, that the 
simple statement of it, is a stronger proof of its absurdity, than 
any argument and illustration that I can offer. 

I now pass to the ground assumed by the Supreme Court, to 
justify the exclusion of the testimony offered in mitigation of 
damages. It was perceived that the reasons offered by the 
judge, at the circuit, were unsound, and that this exclusion could 
not be maintained on that ground. A new position was conse- 
quently taken, and technical doctrines were interposed, which 
as effectually excluded the defendants from their legitimate de- 
fence. In preparing this cause for trial, the defendants believing 
that they could substantiate the charges in the publication com- 
plained of, had given notice of their justification with their plea. 
They had also given notice that they would prove, " that the 
conduct and appearance of the plaintiff, at the time alluded to, 
were such as to induce the belief that he was intoxicated, and 
to justify the obnoxious publication." 

This nofice was given in good faith, and in a full and honest 
belief of their ability to prove the charge. I would have a right, 
if it were necessary, even without proof, to assume this to be so. 
But it is not necessary. The good faith of the defendants is fully 
established by the statements of the respectable witnesses pro- 
duced by them at the trial, who completely substantiated the 
truth of the belief, as far as human testimony could prove it. 



84 

It is true, that this evidence did not produce conviction in the 
minds of a Delaware jury, but it at least established one fact, 
that the defendants sincerely believed the truth of their state- 
ments. The judge himself said in his charge, that "there was 
no doubt of the entire credibility of every witness, upon either 
side." And this after the defendants' witnesses swore to every 
particular fact asserted in the libel. 

Upon a review of the whole testimony, it is impossible to doubt, 
that the defendants made the publication with proper motives 
and in good faith, and that believing it to be true, they gave the 
notice annexed to their plea. 

In this state of facts, the Supreme Court refuses the applica- 
tion for a new trial, on account of the rejection of all this tes- 
timony, developing the real motives of the defendants, because 
(as it is gravely asserted in the opinion of the court) the defend- 
ants admitted malice by undertaking to justify. 

"By the notice annexed to the plea, the malice is confessed 
upon the record." " Such," say the court, after reiterating this 
doctrine in various parts of its opinion, " are the conclusions to 
be drawn from adjudged cases and approved principles." 

Supposing, for the sake of argument, this doctrine to be cor- 
rect, in what situation does it place defendants in actions of 
libel? If they intend to justify, they must either plead or give 
notice of justification. Unless they do that, they are not per- 
mitted to ofter any testimony establishing the truth of the libel. 
These are apj)roved principles, and they are conformable to 
equity and common sense. If the defendant means to estab- 
lish the truth of the charge before a jury, it is reasonable that 
he should give the plaintiff notice of his intention. 

But does it necessarily follow, that because defendants some- 
times believe the charges they make to be true, they always 
make them maliciously ? This publication was made concern- 
ing a public officer, then a candidate before the people for re- 
election. The statements made therein were concerning his 
public conduct. The subject matter was deeply interesting to 
the public. Now, I ask, if every accusation against a public 
officer necessarily proceeds from malicious motives ? This is 



85 

the effect of the doctrine. Whether true or false, the accusa- 
tion is malicious. It proceeds from a malignant motive, because 
the justification must be preceded by a notice, and a notice 
according to the court, " is an admission of malice upon the 
record." 

If the defendants in this case believed the statements thev 
made, they were bound to make the publication in question. 
They were bound, as good citizens and electors, to communi- 
cate these facts to their fellow citizens. If the plaintiff were 
intoxicated, or if they believed him to have been so, as citizens 
of a free country, as editors of a public journal, they ought to 
have communicated the fact. They did believe it. Their wit- 
nesses believed it. They therefore were not actuated by malice 
in publishing their statement, but by a motive having reference 
to the public welfare. At all events, their motives were the 
proper subjects of inquiry before the jury, and not matter of 
record. If their belief in the truth of their statement con- 
tinued unchanged, they were compelled to give a notice of jus- 
tification in order to defend themselves. They do not say by 
that notice, that they made the charge maliciously, but that they 
continue to believe it true, and mean to produce their evidence 
before the jury at the trial. Grant that they labour under a 
delusion ! Is self-deception malice ? Is good faith and sincere 
belief malignity ? Or did any defendant ever dream that by 
giving such a notice in good faith, he gave a written admission 
of his malice, which he had already, in his previous plea, ex- 
pressly denied ? 

If this doctrine be true, it must be true in all cases where this 
admission of malice is to be found upon the record. 

To what conclusions would this lead us ? Suppose the plain- 
tiff, on the occasion alluded to, had feigned drunkenness — that, 
actuated by a holy zeal for his party, like the elder Brutus, he 
had concealed his sanity and sobriety under the guise of a 
brutish behaviour and sottish demeanour. The defendants, not 
penetrating his patriotic motives, believe him to be what he 
seems, and they say the man is drunk. They also give notice, / 
when prosecuted, that they will prove the truth of their state- 



S6 

ment. At the trial the truth appears. The plaintiff proves that 
on that particular day, so far from yielding to his ordinary 
habits of intemperance, he had wholly abstained from drink, 
that he might act more to the life the part of a drunken patriot. 
Are the defendants to be punished because they have been thus 
entrapped ? and is their notice to be considered, as the court 
call it, an admission of malice on the record ? Again, suppose 
the defendants to be informed of the peculation of a public 
officer, by credible persons, whose statements are fortified by 
documentary evidence. Upon this authority a statement is 
made, which is followed by a prosecution. A notice of justifi- 
cation of course is given. At the trial the men, upon whose 
authority the statement was made, do not appear ; the docu- 
ments are produced, and they are shown to be fabrications. 
The incorrectness of the charge is manifest — the character of 
a public servant has been injured, and his counsel call for high 
and vindictive damages for this ?nalicious libel. The defendants 
now show that they were deceived ; nay more, that this decep- 
tion was set on foot by the plaintift' himself, who employed the 
informers, and fabricated the documents. 

I ask if, in this case, the defendants' mistake is to be visited 
with vindictive damages ? and yet, such is the legitimate conse- 
quence of this doctrine of "malice admitted upon the record." 
Can a court in this enlightened age assent to doctrines so repug- 
nant to every principle of justice 1 Even the cases cited by 
the court to sustain this extraordinary proposition, are not simi- 
lar to the one before the court. In the case of Wolcott vs. 
Hall, Q3Iass. 514, nothing was pleaded but a justification. The 
general issue, denying the averments in the declaration, (of 
which the malicious publication is a principal one,) was not 
pleaded. Nothing but the truth of the charge was pleaded ; 
and under the rule that nothing comes in issue, but what is put 
in issue by the pleadings, the jury were confined to that simple 
inquiry. The case of Matson vs. Buck, 5 Cowen, 499, is placed 
upon the case of Wolcott vs. Hall. Hei-e the general issue 
was pleaded with a notice, and in such cases all evidence in 
mitigation is admissible. Such was the law as declared by the 



87 

Supreme Court of Massachusetts, (the same court, whose de- 
cision in Wolcott and Hall met with such approbation from the 
Supreme Court of this state,) in the cause of Larned is. Buffing- 
ton, 3 3Iass., 546. In that case, thegeneral issue was pleaded 
with a plea of justification, and the court there admitted evi- 
dence in mitigation, and said that where, through the fault of 
the plaintiff, defendant had good cause to believe the charge, 
it was a ground of mitigation. He may also prove that he 
made the publication with honest intentions. 

The same rule was laid down in the cases of Leceister vs. 
Walker, 2 Camp. 251, Moor, 1 Maule ^ Selwyn, 811, and was 
recognised by the Supreme Court of New- York, in Paddock 
vs. Salisbury, 2 Cowen,S\\. 

The courts of our sister states have adopted the same rule. 
The Supreme Court of Connecticut, in Bailey vs. Hyde, 
3 Conn. R. 463 ; that of Massachusetts, in Remington vs. Cong- 
don, 2 Pickering, 311 ; of New Jersey, in Cook vs. Barkely 
1 Pennington, 169, and that of Kentucky, in Calloway vs. Mid- 
dleton, 2 Marshall, 372. In all these cases, forming one unva- 
ried line of authorities, the true rule of the common law, and I 
must say of common sense, is to be found in clear and distinct 
language. That rule is, that where a plea of general issue is 
put in, either with or without a plea of justification, any evidence 
in mitigation of damages is admissible: where the plea of jus- 
tification is put in alone, that evidence is not admissible. And 
yet the Supreme Court refuse to grant a new trial, because 
"the malice is admitted on the record," and therefore this evi- 
dence in mitigation is inadmissible. Nay more, in all these 
cases, the question of the admissibility of the evidence in miti- 
gation arose under a plea of justification. Here it was a notice, 
and that of a qualified character. Now, in the case of Vaughan 
vs. Havens, 8 John. R., 110, the Supreme Court of this state 
expressly decided that " the notice forms no part of the record, 
(I cite the words of the court,) and cannot therefore be con- 
sidered as a special plea." " The notice is intended for the 
ease and benefit of the defendant. He may or he may not 
rely upon it. It has been uniformly held that it is not an admis- 



88 

81011 of the matters charged in the declaration. The plaintiff 
is bound, notwithstanding the notice, to prove the facts alleged 
in the declaration." The notice here spoken of, like the one in 
this cause, was a notice of justification in an action of slander ; 
and yet, notwithstanding the strong and emphatic language of 
the court in that case, the same court now holds that a notice is 
a part of the record, and an admission of malice — one of the 
material averments in the declaration. 

I forbear all further comment upon the decision on this point 
in the cause. 

It formed another objection on the part of the defendants to 
the judge's charge to the jury, that the jury was told that " the 
evidence of the plaintitf's character for intemperance was not 
admissible in mitigation of damages, unless of the same quality 
and degree charged in the libel," and this was reiterated to them 
in the morning when they came into court for further and more 
explicit directions. 

The character of the plaintiff for temperance had been at- 
tacked — for the injury sustained, or likely to be sustained, from 
that attack, he had brought his action. His character, therefore, 
for tempei'ance became the subject of consideration in estima- 
ting the damages, unless it is contended, that a man of infamous 
character is entitled to the same damages for any imputation 
upon his name as a person of unimpeachable reputation. 

What the judge at the circuit meant by "' genera! character 
of the same quality and degree," is explained in the next sen- 
tence of his charge. For instance, he says, " the defendants 
cannot be permitted to say that the plaintiff was drunk, and an 
object of loathing and disgust at a specific time, and then to 
diminish the damages by proving him to be generally reputed 
to be addicted to the free use of spirituous liquors, and often 
exhilarated by them." The doctrine of the judge therefore is, 
that if a man be charged with being dead drunk ; a general 
habit of staggering drunkenness shall not be deemed a reason 
for mitigating the damages. In all the different degrees of in- 
temperance, — that of booziness — half seas over — staggering 
drunk — beastly drunk, and dead drunk : — In speaking of a per- 



isoTi in that situation, you must be careful to graduate your ex- 
pressions precisely to his general habit. A slight exaggeration 
■of the degree will expose you to as fearful a retaliation as if, 
hke Shylock in exacting the penalty of your bond, you had cut 
deeper than your pound of flesh. Is this reconcileable either 
with law or reason ? For what are the jury called upon to give 
■damages ? For the injury done to the plaintiff's character for 
temperance and sobriety. If this be bad, no matter in what 
degree, it is a subject of consideration with the jury in estima- 
ting the damages ; not only because the character of the plain- 
tiff was injured by his ow n misconduct, but because if the 
plaintiff was at all addicted to the use of ardent spirits in excess, 
the defendants w^ould naturally ascribe his extraordinary ap- 
pearance and behaviour at the time alluded to, to intemperance. 
Their motives, therefore, would be shown to be free from ma- 
lice, which, where it dees exist, is universally admitted to be a 
good ground for aggravated damages. 

It is not a little remarkable, and it adds to the force of this 
exception, that notwithstanding this direction of the judge to 
the jury, he had previously prevented the defendants from ask- 
ing a witness (E. J. Roberts) on cross-examination, " How often 
he had seen the plaintiff intoxicated, and to what degree." 
Thus preventing the defendant on one hand from inquiring into 
the degree of intemperance in which the plaintiff habitually 
indulged, and then on the other hand charging the jury, that 
unless his general character for intemperance was of the same 
degree w4th that charged in the libel, it was not admissible in 
mitigation of damages. The striking injustice done to the de- 
fendants by these decisions was so manifest, that the Supreme 
Court did not attempt to sustain the judge's charge at the circuit, 
but assumed a technical ground for the exclusion of this testi- 
mony. Whether this new ground be more tenable, we shall 
now examine. The Supreme Court in its decision admits, that 
the character of the plaintiff is a proper subject of inquiry, but 
denies that any examination ought to take place into his cha- 
racter for temperance. Inquiry, says the court, may be made 
into his general moral character, but not into his character for 

12 



90 

any particular quality. This extraordinary proposition, ad- 
vanced I venture to say for the first time in a court of justice, 
is not only contrary to the ordinary practices, but also to the 
plainest principles. The very inquiry of the jury is concerning 
the character of the plaintilT for temperance, and for nothing 
else. 1st. Because his character in that particular had been 
attacked, and it was the duty of the jury to ascertain how much 
it had been injured. 

2dly. Because the evidence would tend to rebut the presump- 
tion of malice. 

The court, however, carried away by some idea concerning 
general character, which I must confess I cannot comprehend, 
determined that all inquiry into his character for temperance 
was inadmissible — as if in an action by a female for a libel 
stigmatizing her as a prostitute, the defendant should be pro- 
hibited from any inquiry into her character for chastity, but 
confined to an investigation of her general character, excluding 
that particular. Such are the reasons which induce the defend- 
ants to ask a new trial on that branch of the case touching the 
measure of damages, and it is but seldom that a case presenting 
a greater violation of principle has been brought before this 
court for supervision. The defendants complain, that great 
injustice has been done them in the charge to the jury, and that 
several novel and extraordinary principles have been advanced 
in this cause, and all militating against their defence. On that 
account we ask a new trial, but not on that account alone. 
These reasons all refer to an injury atiecting the defendants 
personally, but there were other principles advanced at this 
trial touching the freedom of political discussion, compared 
with which the doctrines I have already commented upon sink 
into insignificance. These principles strike directly at the free- 
dom of the press, and practically place it at the mercy of the 
judges, and I know I speak the sentiments of my clients when 
I say, that more on account of what they deem a violence per- 
petrated upon the cause of freedom and upon our liberal insti- 
tutions, than because of the injustice done to themselves, (though 
that is not trivial,) they have deemed it their duty to resist this 



91 

judgment to the last, and not to submit to it, until it is declared 
to be the law of the land by the court of final resort. At the 
trial of this cause, the jury were told that the question of malice 
was a legal inference, and it forms the third point in the case 
presented to this court, that the question of malice was not sub- 
mitted upon all the evidence as a question of fact for the deci- 
sion of the jury. 

To prevent any misapprehension, as to the principles for 
which we contend, I shall submit them to the court in the shape 
of distinct propositions. 

1st. Where the subject matter of the publication is such that 
no good motive can be assigned, malice is necessarily inferred. 

2d. Where public motives are assignable for the publication, 
malice then becomes a doubtful question ; and whether it is to 
be inferred or not, is a question of fact for the decision of the 

jury- 

3d. When a publication is made concerning the official con- 
duct of a public officer, good motives, and probable cause for 
believing it to be true, furnish a good defence to an action for 
libel. 

The last of these propositions may be deemed somewhat 
novel, and I am free to admit that it has not been distinctly 
sanctioned by the courts, either of England or in this state ; but 
it should be also recollected that this question has never before 
been distinctly raised in our courts, and I intend to show that, 
on the law of political libel, the courts of England do not fur- 
nish a safe rule for the tribunals of the United States. 

It is true that, by a provision of the Constitution of the state 
of New- York, the common law of England is adopted as the 
law of the state. But this adoption was never intended to ex- 
tend to all the crudities and absurdities growing out of the feudal 
system, and entirely inconsistent with the institutions of this 
country. It was, indeed, an adoption of its principles as a body 
of jurisprudence, but when any of these principles are found to 
be inconsistent with our own institutions, they are either ex- 
pressly or silently abrogated. The courts do not acknowledge 
the principle, that the executive can do no wrong, or that the 



9^ 

legislature is omnipotent, and yet these are principles of tfe 
common law. They are, however, repugnant to the spirit of 
our institutions, and the courts therefore reject them. 

This qualifying principle must be carried with us in the 
examination of any doctrine of the British courts, not sanctioned 
by our own courts, and relative to the political concerns of 
society. It must especially be applied in all discussions of the 
law of libel. A law which, protecting as it does private cha- 
racter, also limits and defines the freedom of the press, the great 
instrument of reform in the science of government. 

What then, 1 may ask, is the common law of libel ? It is a 
legal principle aiming at the protection of character against 
malicious attacks. The principle, however, does not go to the 
extent of declaring, that all publications concerning private 
character are libellous ; nor even that all false publications con- 
cerning private character are libellous. 

There are things more highly valued by the law, than even 
the exemption of individuals from untrue aspersions of their 
good name. 

Some of the dearest interests of society depend upon free 
discussion ; and the law, wisely looking to the higher interest; 
does not concede to individuals any reparation for injuries to 
their characters sustained in these discussions. In general, in- 
dividuals are liable for written publications afiecting private 
character, provided they be untrue : but where the public has 
an interest in the discussion of the subject matter of the publi- 
cations, they are then liable only for what is malicious as well 
as false. The malicious intent then becomes an averment, 
which the plaintitf must prove. It is always a necessary and 
material averment ; but in general the jury are at liberty to 
infer it from the falsehood of the publication. In this class of 
publications, however, the proof of intent devolves upon the 
plaintiff, and is one of the preliminary objects of inquiry on the 
part of the jury. When that is established, or when grounds 
for them to adopt such an inference have been laid, it then be- 
comes necessary for the defendants to prove the truth of the 
publicatioii. Malice is never, as the judge asserted at the trial, 



93 

an inference of law, but always a question of fact, and a mate- 
rial averment. In 1 Chitty's Plead., 226, it is said, that where 
the law intends or infers a fact, no averment is necessary. The 
same doctrine is laid down by Lord Coke, List., 780. If, there- 
fore, malice were a legal inference, no averment would be ne- 
cessary. It may, indeed, be an inevitable inference from the 
circumstances, but it may also be a doubtful question, and the 
defendants were entitled to have the decision of the jury upon 
that point. Where no good motives can be assigned for the 
publication, the duty of the jury is plain. They then only in- 
quire whether it be true or false, because if false it is malicious. 
But where public motives can be easily assigned for the publi- 
cation, the law then requires the jury to inquire not only con- 
cerning its truth, but also into the motive of the defendants in 
making the publication. If it be false, the defendant is not 
necessarily to be condemned. He may have been mistaken, 
and the law will not condemn him when giving information, in 
a matter about which the public is interested in obtaining infor- 
mation, for an error in judgment. It concedes this much to 
human fallibility, and only condemns for what is wilfully or 
maliciously false. The intent then becomes the criterion of 
guilt or innocence, and whether the libel be true or false, if 
published without malice, and in good faith, the defendant is 
justified. 

We contend that this is invariably the I'ule, where the public 
is interested in the subject matter of the communication. By 
reference to adjudicated cases, both in this country and in Eng- 
land, the court will find this proposition to be fully established. 
In the case of Weatherstone vs. Hawkins, 1 Term. R., 110, 
which was an action brought bv a servant against the master 
for giving him a bad character ; the court decided that in order 
to sustain that action, it was necessary not only that the state- 
ment made by the master should be untrue, but that the plaintiff 
should prove it to have been made with a malicious intent. 

So, too, in discussing the character of a person applying for 
admission into a volunteer corps, a communication to the com- 
mittee of election must be shown to have been made from a 



94 

malicious motive. Its falsity is not sufficient. Barband vs, 
Hookham, 5 Esp. R., 109. 

The same doctrine is laid down in the case of Hare vs. Mel- 
ler, 3 Leon, 13S, where a statement was made in a complaint to 
the Queen : in Lake vs. King, 1 Saimd., 131, where it was made 
in a petition to the House of Commons : in Ashley vs. Younge, 
2 Burr., 810, in a course of judicial proceedings : in Hodgson 
vs. Scarlett, 1 Barn. ^- Aid., 239, where it was made by a coun- 
sel in the discharge of his duty ; and in Benton vs. Worley, 
4 Bibb., 38, in an application to justice for a warrant. 

The courts of the United States have repeatedly recognised 
this principle. In Jarvis vs. Hatteway, 3 John. R., 180, the 
Supreme Court of this state held, that a statement made in pro- 
ceedings in a course of church discipline was not libellous, 
except malicious as well as false. The same doctrine was held 
in Thorn vs. Blanchard, 5 John., 508, respecting a petition to 
council of appointment, to remove plaintiff from his office ; and, 
by the Supreme Court of Penn., in Gray vs. Pentland, 4 8erg. 
^' Rawie, 420, respecting an affidavit sent to governor as to the 
official misconduct of plaintiff, w^ho held his appointment from 
the governor ; and in Fairman vs. Ives, 7 Serg. ^ Loicber, 221, 
where the libel was in a petition to the Secretary of War, ac- 
cusing a subordinate officer of not paying his debts. The prin- 
ciple, indeed, is recognised in its broadest extent, that in an 
application for relief to the proper authority, the charge is not 
libellous unless it is both malicious and false, and malice must 
be proved by the plaintiff. In addition to the cases above cited, 
the court will find the same doctrine sanctioned in 12 Coke, 104 ; 
Cro. Eliz., 230 ; Andr., 229 ; 3 Ca772p., 296; 1 Binney, 178 ; 
2 Pickering, 314 ; 3 Taunt, 456; 1 Sir Wm. Black., 386;- 
4Esp.R., 191. 

In all these cases, forming an uninterrupted current of au- 
thorities, it was held, that where the public is interested in the 
subject matter of the communication, the inquiry is not merely 
whether the publication be true, but, if false, v.'hether it were 
published from malicious motives. The plaintiff was held 
bound to prove the malicious intent. The jury were directed 



95 

« 

to inquire whether the defendant intended to serve the public, 
or merely to injure the plaintiff; whether the motive was public 
or malicious ; and if they found that it was published with a 
belief in its truth ; the inference of malice being rebutted, they 
were directed to acquit the defendant. 

In criminal prosecutions for political libels, it has indeed been 
held by the English courts that malice was a legal inference ; 
and it is from that source that the honourable judge who tried 
this cause derived the doctrine then advanced by him. But this 
principle has not been asserted even in England in civil suits ; 
and if it had been, I am prepared to show that the law of England 
on the subject of political libels is not and never ought to be the 
law of this country. 

In civil actions of this class, the motive has been even there 
held to be an essential inquiry for the jury, and not, as the judge 
here called it, a legal inference. The jury are directed to de- 
cide upon the question of malice, and not, as they were here 
repeatedly told, to consider it as a question of law. In this case 
the question of malice was in efiect excluded from the consider- 
ation of the jury ; and if they might have inferred that the pub- 
lication could have been made without malice, the charge was 
incorrect. 

It is unnecessary for us to show, that such an inference might 
have been drawn. Happily the charge of the judge furnishes 
us with satisfactory evidence of the sincerity and good faith of 
the defendants in making this publication, where he tells the jury 
that entire credit is to be given to the statements of all the wit- 
nesses ; although those of the defendants could not be believed 
without admitting their justification to be completely made out. 

It is scarcely necessary to go into detail, to prove this case to 
belong to that class, W'here the public is interested in the subject 
matter of the publication. It was concerning the conduct of a 
public officer while discharging his official duties, and it accused 
him of what ought to have deprived him of the support of the 
people. His conduct, supposing this charge to have been true, 
degraded his office, and was offensive to decency. It was a 
public duty therefore to communicate it to his constituents 



96 

throughout the state. The motive might have been a pubhc 
one as well as malicious, and tlie defendants were debarred 
from their legal rights in having that question withdrawn from 
the jury. 

The doctrine, that malice is an inference of law, is drawn 
from the English criminal law concerning libels ; and although 
in the government prosecutions for political libels, precedents in 
abundance may be found in which this principle is advanced,! 
shall contend that, that branch of English jurisprudence was never 
adopted in this countrj^; that it is inconsistent with the character 
of our institutions ; and that the general principle of the common 
law, that publications concerning subjects affecting the public in- 
terest are not libellous unless malicious, applies here to publica- 
tions made with the intention of communicating in good faith in- 
formation to the public concerning the official conduct of a public 
officer ; that in all such publications the intent is a material ques- 
tion for the consideration of the jury — a question of fact, and 
not a legal inference. 

The law concerning libels is not to be found in the earlier law 
books. It is intimately connected with the advance of society, 
and may be said to depend upon the progress of civilization. It 
originated in the aspirations of the people for freedom, and to 
obtain a greater share in the government than they had formerly 
enjoyed. When these movements became obnoxious to the 
ruling powers, they directed their attention to the subject, and 
suppressed political discussion without ceremony. 

Shortly after the introduction of printing into England, we 
find the Star Chamber established : — As if this formidable tri- 
bunal, so hostile to freedom, and the abolition of which was its 
first triumph, was especially instituted to control the press. 
How government at first exercised its power in repressing 
political libels we may learn from Lord Bacon's History of 
Henry VII. In speaking of Lord Stanley's execution, this 
great philosopher, who, with all his sagacity, did not fully appre- 
ciate the rights of the commonalty, or the power of the press, 
says, " Hereupon presently came forth swarms and vollies of 
libels, which are the gusts of liberty of speech restrained and 



97 

the females of sedition, containing bitter invectives and slanders 
against the king and some of the council ; for the contriving 
and dispersing whereof, five viean persons were caught up and 
executed'^ In this summary manner was the offence of libel- 
ling the government punished under the Tudors; and although 
under the Stuarts the form of a trial was gone through, the 
proceedings were fully as subversive of the principles of free- 
dom and justice. 

During the reigns of James and Charles, as we are informed 
by Hume, (certainly no advocate for the liberal side of the 
question,) any book commenting upon the conduct or ordi 
nances of the monarch was deemed libellous, and its authors 
brought before the Star Chamber for punishment. IIow that 
tribunal punished them, and what respect was paid by its mem- 
bers for civil rights, when they came in collision with the pre- 
rogatives of government, we can learn in the civil war and in 
the overthrow of the monarchical government brought about 
by their iniquitous judgments. 

Even under the commonwealth, a government which rather 
exemplified the triumph of a party, than the prevalence of 
liberal principles, although this court was abolished, the restric- 
tions on the press were conlined, and a censorship was estab- 
lished, which produced from Milton his celebrated and most 
eloquent essay in favour of unlicensed printing. An essay from 
which I shall have occasion hereafter to quote, as high authority 
illustrating and enforcing the principles advanced in this cause. 
The restoration of the Stuarts did not augment the freedom 
of the press, and after this event the state prosecutions for libels 
against the government begin to appear in the reports of the 
common law courts. The first case to which I shall refer is 
that of John Twynn, who was executed in 1663, shortly after 
the Restoration, for publishing " that when the magistrates pre- 
vent judgment, the people are bound to execute judgment with- 
out and upon them." 

In 1680 we find the courts advancing the doctrine laid down 
by the honourable judge at the trial of this cause, and as this 
seems to be the origin of this doctrine, (and certainly it is not 

13 



98 

of modern origin,) it will not be amiss to refer particularly to- 
the case. It was at the trial of one Henry Carr, for a libel 
ridiculing the Jesuits, before Chief Justice Scroggs, that corrupt 
and unprincipled minion of power. This instrument of the 
crown then told the jury, that they had no power to judge of the 
intent, and that (I read from his charge, 7 St. Trials, 1127,) "as 
for these words, illicite, maliciose, unlawful } I must recite what 
all the judges of England have declared under their hands: 
When, by the king's command, we were to give in ouropinion^ 
what was to be done in point of the regulation of the press: — 
we did all subscribe, that to print or publish any newspaper or 
pamphlet of news whatsoever, is illegal ; that it is a manifest 
intent to the breach of the peace, and they may be proceeded 
against by law for an illegal thing. Suppose now that this 
thing is not scandalous, what then ? If there had been no re- 
flection in this book at all, yet it is illicite, and the author ought 
to be convicted for it. And that is for a public notice to all 
people, and especially printers and booksellers, that they ought 
to print no book or pamphlet of news whatsoever without au- 
thority. So as he is to be convicted for it as a thing illicite 
done, not having authority." " If you find him guilty and say 
what he is guilty of, we will judge whether the thing imports 
malice or no." 7th St. Tr. 1127. 

After this charge, in which the jury are repeatedly told that 
they have no concern with the question of malice, they retired,, 
and in an hour after brought in a verdict of guilty. Wiiereupon 
they received from the lips of this immaculate judge, this high 
commendation, " you have done like honest men." And his 
worthy coadjutor, the then Recoi'der of London, Sir George 
Jeffries, replied, " they have done like honest men." 

In this case is to be found the origin of the doctrine, which 
the honourable judge who tried this cause laid down as a rule 
for the jury, and we are willing that it should have all the weight 
due to its antiquity, and to its pure and venerable origin. Some- 
thing, however, had now been gained in England by the efibrts 
of the Presbvterians and Pin'itan whisjs. Men were no longer 
caught up and executed. The Star Chamber was abolished, 



99 

and libellers were brought before the courts of common law. 
The crown, as before, was still hostile to the press, and with a 
view of keeping it in a state of complete control, the doctrine 
that malice was a legal inference was invented, as a substitute 
for mere arbitrary will and power. Juries were told to find 
guilty upon proof of publishing, and the courts would then de- 
termine v^^hether malice was imported. 

Juries, however, would not always acquiesce in this doctrine ; 
and in the celebrated case of the seven bishops, they took upon 
themselves to determine the question of malice, and acquitted 
the defendants. The conflict now between the court and the 
jury, had fairly commenced. The judges, always striving to 
retain the power of determining the real question at issue in libel 
prosecutions, i. e. the guilty or malicious intention of the defend- 
ants, and the juries generally acquiescing, but occasionally, in 
matters where the public mind was highly excited, acquitting, in 
spite of the directions of the judges. In this contest, although 
the destined victims of arbitrary power would sometimes be 
protected, it was always with an effort ; and in the natural 
course of events, they were sacrificed to the power of govern- 
ment. 

Thus, in 1682, we find Thompson, Paine, and Farewell convict- 
ed and punished for publishing, that Sir Edmondbury Godfrey 
had murdered himself; it then being an object with the alarm- 
ists to make the nation believe that he was murdered by the 
Jesuits. 

So, too, in 1693, after the revolution by which the English 
people flattered themselves their liberties were secured, Wm. 
Anderton was executed for a libel. 12 Si. Tr. 1246. 

In 1719 Littleton Powys took occasion, in his charge to the 
grand juries at the assizes, to express his opinion, and that of his 
brethren, concerning "the base libels and seditious papers, whose 
number had become intolerable," and respecting which he de- 
clared " that the government would not be at the trouble of 
inquiring after the authors, but would consider keeper sof coffee 
houses responsible for what were found there." 

In 1729, at the trial of John Clark, who was only a pressman, 



100 

and in 1731, at the trial of Richard Franklin, the publisher of 
the Craftsman, the same doctrine as to the malicious intent was 
reiterated, and the jury were told that it was a legal inference, 
which it was the province of the court to make, and that they 
had nothino; to do with it. 

At the same time, efforts were made to introduce the English 
law of libel into this country. In 1735, John P. Zenger, who 
then published a weekly journal in the city of New-York, was 
prosecuted by information for a libel upon the government of 
the province. Great exertions were made by the government 
to procure a conviction, and two respectable counsel were struck 
from the roll for signing his exceptions. All evidence of the 
truth of his publication was rejected by the court ; but the 
counsel for the defendant contended, that the jury might find a 
verdict for the defendant from their own knowledge of the truth 
of the publications. This they did do, in defiance of the charge 
of the court, and thus ended the first attempt to introduce the 
English law concerning political libels into this country. 

In 1752, another contest took place in England, between the 
court and the jury, respecting Wm. Owen, who was prosecuted 
for a libel upon the House of Commons, and the jury acquitted the 
defendant, although the proof of publication w^as clear. 18. St. 
Tr. 1828. The court catechised the jury upon their bringing 
in the verdict, but they adhered to it. " Upon which, (as the 
report has it,) the court broke up, and there was a prodigious 
shout in the hall." This was the third contest, in which the jury 
prevailed. The first was in the case of Bushnell, and the second 
in that of the seven bishops. 

The elements ofagreater conflict, however, now were gather- 
ino-. The movements of the ministry in reference to this country, 
then in a state of colonial dependence, were only indications 
of the spirit which animated the councils of the government, and 
of its hostility to civil freedom. The same feeling which urged 
our ancestors to resistance, animated the whigs of England, and 
caused violent domestic parties. Wilkes attacked the ministers 
in the North Briton. Junius overv/helmed them with invective, 
denunciation, and sarcasm, in the Daily Advertiser ; and after 



101 

prostrating the servants of the crown, he laid his sacrilegious 
hands upon the Lord's anointed himself. This bold attack ex- 
posed the publishers and sellers of the celebrated letter to the 
king to state prosecutions for libels. 

John Almon, a bookseller, was first brought to trial in Middle- 
sex, where the jurors were more under the influence of the crown 
than in London. Defendant did not know of the publication, 
but the doctrine of the judges as to intention prevailed, and the 
defendant was found guilty. John Miller was next tried before 
a London jury, and the defendant's counsel contended that they 
were to pass upon the intent of the defendant, but Lord Mans- 
field told them that the intent, malice, &c., were mere formal 
words, " mere inference of law, with which the jury were not 
to concei-n themselves." " They were only to decide upon the 
fact of publication, and the meaning of the inuendoes." The 
jury, however, thought otherwise, and acquitted the defendant, to 
the great joy of the popular party. 20. St. Tr. 894. 

The same doctrine was advanced in the very words I have 
just used, in the trial of Woodfall, the printer of the letter ; and 
in this case the jury gave in a verdict of " guilty of printing 
and publishing only." lb. 899. Li this last case, a motion was 
made for arrest of judgment by the defendant's counsel, and a 
motion for judgment by the counsel for the crown. The court 
ordered a venire de novo, but the cause was never again tried. 
lb. 921. 

These decisions produced great excitement in England. The 
causes were considered, and justly considered, as trials of 
strength between the great political parties of the day ; the one 
endeavouring to augment the powers of government ; the other 
striving to restrain them within the limits of the constitution. 
This great contest, of which the elements had long before been 
gathering, was now at its crisis. The government aimed, by the 
stamp act and taxation bills, to reduce the North American colo- 
nists to a state of absolute vassalage, and to crush the opposition 
at home by a course of measures, of which the prosecutions for 
libels, and secretary of state's warrants, formed a part. These 
measures were all features of the same policy, and indicated the 
same despotic parentage. 



II 



102 

The liberties of the Anglo-Saxon race were at stake, and 
fortunately for the cause of civil freedom, its defence was in- 
trusted to men of uncompromising character, of clear minds, 
and undaunted resolution. Though Lords Mansfield, Bute and 
North, aided by the whole power of the British crown, threat- 
ened to crush all who thwarted their will ; the friends of Eng- 
lish liberty were encouraged in their resistance by Camden 
Chatham, and Burke, whose pi'inciples were also enforced by 
the American Congress. 

The warrants of the Secretary of State were adjudged illegal 
in the case of Rochford ads. Sayre. The doctrine of the courts 
respecting libels, although destined to undergo a more pro. 
tracted discussion, met with a similar fate. 

The principles advanced from the bench, in the trials of 
Woodfall and the other printers, immediately became the sub- 
ject of parliamentary animadversion. 

Chatham commented upon them with great severity in his 
speech, relative to the Middlesex election, and stigmatized them 
"as contrary to law, repugnant to pratice, and injurious to the 
dearest rights of the people." Lord Mansfield, who was then 
present in the House of Lords, was compelled by this public 
attack to enter upon a defence of his conduct. A debate ac- 
cordingly occurred in the House of Lords, in which Lord 
Camden, the former Chancellor, took part. The remarks of 
this learned and upright judge are too pointed respecting the 
doctrine in question, to be suppressed. (I read them from 
Dodsley's Annual Register for 1771, p. 27.) He said, that, 
" having passed through the highest departments of the law, he 
was particularly interested, and even tied down by duty, to 
urge the making of the inquiry into the conduct of the judges : 
that if it should appear that any doctrines had been inculcated, 
contrary to the known and established principles of the consti- 
tution, he would expose and point them out, and convince the 
authors to their faces of the errors they had been guilty of: 
that he could not, from his profession, but be sensibly con- 
cerned for the present disreputable state of our law courts, and 
sincerely to wish that some effectual method might be taken to 



103 

recover their former lustre and dignity ; and that he knew of 
no method so effectual as the proposed inquiry. If the spirit of 
the times has fixed any unmerited stigma upon the character of 
the judges, this will purify them, and restore them to the esteem 
and confidence of their country ; but if the popular rumours 
have unhappily been too well founded, we owe it to ourselves 
and to posterity, to drive them indignantly from the seats which 
they dishonour, and to punish them in an exemplary manner for 
their malversation." 

A motion was also made at the same time, in the House of 
Commons, proposing an inquiry into the conduct of the judges ; 
and one of the specific charges brought against them was, that 
they had claimed the right to judge of the intention, which doc- 
trine was stigmatized as illegal and tyrannical. This motion 
was resisted by the ministerial party, who prevailed on a divi- 
sion, 184 against 76, for the proposed inquiry. 

The effect of those animadversions was, to produce a notice 
on the part of Lord Mansfield, for a call of the House of Lords on 
the following Monday on a matter of importance, which he 
had to communicate to them. It was generally supposed that 
this call was preparatory to a free and open discussion of the 
offensive doctrines, which he intended to bring on in the House 
of Lords. But upon the appointed day Lord Mansfield shrunk 
from the discussion, and merely informed the House that he 
had left a paper with the clerk, containing the unanimous opin- 
ion of the Court of King's Bench in the case of Woodfall, for 
the perusal of any one. 

It was then asked if the paper was to be entered upon the 
journals of the House, to which a reply in the negative was 
given ; and no motion being made by Lord Mansfield, Lord 
Camden stated to the House, that he was ready to maintain that 
the doctrine laid down as the judgment of the court was not 
the law^ of England, and pressed upon Lord Mansfield to appoint 
an early day for the discussion. 

This challenge, however, was declined, and the courts con- 
tinued in theory to assert the old doctrine, but not often ven- 
turing to enforce in practice, until Mr. Fox brought forward his 
declaratory acti repudiating the principle as slavish, and incon- 



104 

sislent with the spirit of the common law. In all the discussions 
relating to the passage of this act in parliament, the whig 
leaders, Fox,Erskineand Bearcroft, contended that the intention 
ought to be submitted to the jury as a matter of fact. Lord 
Camden said it was always a question of fact. Lord liough- 
borough said that it had always been his practice to submit the 
whole matter in libel suits to a jury, and Pitt admitted that the 
law ought to be so. The act finally passed, and the question 
was decided in favour of the liberty of the press. The malice ' 
or intention of the libeller was formally declared to be a ques- 
tion of fact, and not an inference of law. 

While this concession to freedom was thus slowly and by 
degrees wrung from the government at home, circumstances 
had prepared the way on this side of the Atlantic for a more 
general conflict, resulting in a complete and decisive triumph. 
The resistance of our ancestors, which at first aimed at securing 
to them only the privileges of Englishmen, eventuated in pro- 
curing to them and their posterity complete enjoyment of the 
rights of men. The British Colonies were separated from the 
mother country, and united under an independent government, 
republican and representative in its character. They adopted 
in the main, the laws and institutions of the parent kingdom, 
but made one great and material alteration. This variance, 
which lies at the root of the question I am discussing, resulted 
from the difference in the character and spirit of the two go- 
vernments. In Great Britain it is held to be a maxim, that the 
king can do no wrong. The public officers throughout the 
kingdom are his instruments, and in some sort represent his 
authority ; and though they are not vested with the same im- 
munity, it is impossible to disregard the tenderness manifested 
by the law for public dignities, and their freedom from all con- 
stitutional responsibility. This exemption from political re- 
sponsibility is a principle pervading the whole constitution. 
The king is incapable of doing wrong. Parliament is omnipo- 
tent, and the judiciary in fact independent of all but the execu- 
tive government. In this state of things the press cannot be 
free. It is at most merely tolerated, and unless the government 



105 

means to foster an instrument, which must ultimately overthrow 
it, it acts wisely in thus limiting its power. In this country an 
entirely opposite principle prevails. The government was 
established by the people and for the people. It is founded on 
the great maxim, of rendering all public officers accountable 
to public opinion. This principle of accountability pervades 
all our political institutions. The legislature is accountable to 
the people : The executive to the legislature, and also to the 
people : The judiciary to the legislature, and indirectly to the 
people. Every officer intrusted with power is accountable 
either directly or indirectly. At periodical elections held in 
various parts of the country, this delegated power is laid down, 
and is either intrusted to new servants, or to the old ones whose 
services have been satisfactory. 

This arrangement of our political institutions presupposes 
information to be communicated to the people through the press 
concerning their public affairs. 

The government is based upon public intelligence, and the 
doctrine of accountability on the part of elected magistrates 
mainly depends upon a free press — upon a press to publish as 
freely of public officers, as according to the common law (which 
here is not warped to suit the views of government) it mav 
publish of private individuals what it concerns the public to 
know, and to be held responsible only for what is maliciously, 
as well as untruly published. 

This is the great result of our revolution in government — 
reformation in public measures by means of public opinion. 
The means of communicating information of course were in- 
tended to be free. This is the real object of that provision of 
the constitution guarantying the freedom of the press. It meant 
to secure the press from the power of the government, and to 
enable it to criticise with freedom public measures, and the 
conduct and qualifications of public officers. This was the 
only freedom the press wanted. It was always free in Eng- 
land as to publications concerning private character, when it 
conformed to the great principles distinguishing between pub- 
lications strictly private or personal, and those aiming to sub. 

14 



106 

serve the public welfare. It was shackled only so far as it 
attempted to discuss public measures, and the conduct and 
character of public officers. In this country, the same freedom^ 
was extended to political discussions, which were no longer to 
form an exception to the common law of libel ;. but were to be 
adjudged upon as other publications affecting reputation and 
having the interest of the community in view, viz., to be justified 
where the intention is justifiable ; to be condemned where it is 
malicious. By the change in the form and character of the 
government, the reason which made the law concerning politi- 
cal hbels an exception from the common law of libel is at an 
end ; and the maxim prevails cessat ratio cessat lex. 

It forms no longer an exception, and all authority derived 
from the common law respecting political libels, is to be rejected 
as not applicable in this country. 

The honourable judge who presided at the trial of this cause, 
not properly appreciating the distinction, was led into a mistake^ 
and adopted the doctrine advanced in the case of Woodfall, 
and so much censured in Parliament. The Supreme Court fell 
into the same mistake in relying upon the case of Lewis vs.. 
Few, 5 John. . That case, indeed, is not altogether applicable 
to the point now under discussion ; inasmuch as the question- 
was brought up upon a demurrer to the evidence, where the 
rule is, that whatever might be inferred by a jury, the court is 
bound to infer in favour of the plaintiff. Now we do not con- 
tend, that the jury may not infer malice from the publication 
itself, but that it is not necessarily inferrible, and may be re- 
butted from the other circumstances ; and at all events, that it 
is a question which the jury may decide in the negative. 

The case of Lewis vs. Few, therefore, is not in point, inas- 
much as there the court were bound to infer malice, because 
the jury might have inferred it ; but if it were directly in point, 
I should contend, that so far as it sustains the principle that 
malice is not a question of fact, but a legal inference, it is to be 
disregarded. 

The authorities of the law for this country, in reference to 
political libels, are not to be found in the decisions of English 



107 

Judges, influenced as they have generally been by the hope of 
court favour, or fear of its frowns, and of whose fallibility and 
arbitrary disposition you have such melancholy proofs in those 
records of human weakness and crime, interspersed with ac- 
counts of suffering patriotism, entitled English state trials. 
They are to be found in the expressed opinions of the eminent 
men, who have contended in behalf of English freedom against 
the arbitrary principles of the crown, promulgated by these 
very judges — in the acts of our revolutionary ancestors, and of 
their successors who established our political institutions — and 
in the character and spirit of thos€ institutions. These opinions 
are protests against the arbitrary doctrines of the English 
courts ; and followed up as they have been by the acts which 
gave us liberty and an independent government, they form an 
authority with which the technical and narrow precedents of 
the books are not to be brought in comparison. 

Milton, in his eloquent speech for an unlicensed press, asserts 
this very doctrine for which we are now contending. Speak- 
ing of the power of the press in reforming abuses in a commu- 
nity, he says, " For this is not the liberty which we can hope, 
that no grievance ever should arise in the commonwealth ; that, 
let no man in this world expect; but when complaints are 
freely heard, deeply considered, and speedily reformed, then is 
the utmost bound of civil liberty attained that wise men look 
for." And a little farther, " Give me the liberty to know, to 
utter, and to argue freely, according to conscience, above all 
liberties. Though all the winds of doctrine were let loose 
to play upon the earth, so truth be in the field, we do in- 
juriously, by prohibiting and licensing, to misdoubt her strength. 
Let her and falsehood grapple ; who ever knew truth put to 
the worse in an open and free encounter ?" 

This same doctrine Vv'as what Erskine contended for, through- 
out his long contest with the courts in behalf of the rights of 
juries and the freedom of the press. 

At the trial of the Dean of St. Asaph for a libel, after allu- 
ding to the controversy between the courts and juries, respect- 
ing the right of juries to judge of the intent, he says, " now 



108 

prosecutions for libel are tried, and I hope ever will be tried, 
with that harmony which is the beauty of our legal constitu- 
tion ; the jury preserving their independence in judging of that 
inalus aniinus, which is the essence of every crime, but listening 
to the opinion of the judge upon the law and the evidence, with 
that respect and attention which dignity, learning and honest 
intention in a magistrate must and ought always to carry along 
with them." 

During this trial, a contest took place between this intrepid 
advocate and Justice BuUer, in consequence of the jury's wish- 
ing to give a verdict of" guilty of publishing only." 

A motion was made for a new trial in the King's Bench ; and 
in the argument on that motion, Mr. Erskine laid down these 
distinct propositions, that " no act, abstracted from the intention 
of the actor, is a crime." 

" That where the mischievous intention cannot be collected 
from the fact charged, because conflicting evidence is produced, 
it then becomes a pure unmixed question of fact for the consi- 
deration of the jury." 

Again, in Stockdale's case, his ground of defence was, that 
his client's intentions were pure ; that the pamphlet was a bona 
fide defence of Mr. Hastings ; that this singleness and purity 
of intention atTorded an excuse, even for intemperance of ex- 
pression ; that this was the question for the jury to try, and that 
they might safely acquit his client on that ground, for that his 
principles of defence could not at any time, or on any occasion, 
be applied to shield wilful libellers from punishment, and that 
they were compatible only with honour, honesty and mistaken 
good intention. In concluding this most eloquent and masterly 
defence, a defence which, taken together with his argument in 
the case of the Dean of St. Asaph, contains more sound prin- 
ciple on the law of political libel, than the collected wisdom of 
all the judges of England, he told the jury, that the question to 
be decided was not in any sense a question of law, but a pure 
question of fact, to be decided upon the principles he had ad- 
vanced in his defence. 

The jury retired, after receiving a very precise charge from 



109 

Lord Kenyon, and in about two hours brought in a verdict ac- 
quitting the defendant. 

These propositions of Mr. Erskine, in the case of St. Asaph, 
were distinctly approved by Mr. Fox, in the debate on the 
declaratory act, and he asserted, tliat the jury had a right to 
decide on the intention as a matter of fact, 3d vol. Senato?; 627. 
Mr. Burke, too, asserted the same principles, in his speech on 
Mr. Dowdeswell's motion for leave to bring in a bill settling the 
law on this point, made in Parliament, March 7th, 1771, and he 
further observes, that " if the intent and tendency be left to the 
judge as legal conclusions resulting from the fact, you may de- 
pend upon it, you can have no public discussions of a public 
measure." Sir James Mackintosh also adds his authority in 
behalf of the same position, in language particularly applicable 
to the case now under discussion. In his defence of Peltier, 
who was indicted in England during the short-lived peace after 
the treaty of Amiens, for a libel upon Napoleon, then first 
consul, he contends that "the essence of the crime of libel con- 
sists in the malignant mind, which the publication proves, and 
from which it flows. A jury must be convinced, before they 
find guilty of libel, that his intention was to libel — not to state 
facts which he believed to be true." 

Such are the principles held by the great leaders of the whig 
party of England, in opposition to the arbitrary doctrines of the 
court. The principles of our revolutionary ancestors were no 
less clear and decided. At the commencement of the struggle, 
when it became apparent that no compromise could take place, 
but that their principles must be enforced, they despatched com- 
missioners to Canada, to induce that province to join the con- 
federacy. 

These commissioners were directed to establish a free press 
as one of the essential requisites, to qualify the Canadians for 
a participation in the privileges of freedom, for which they 
were then entering upon a war of no speedy termination. 

The constitutions of the several states also afibrd evidence of 
the peculiar importance of a free press, and of the views of 
our own ancestors of the common law respecting political libels. 



no 

The constitutions of Massachusetts and North Carolina, esta- 
blished during the contest, and even amid the din of arms, fur- 
nish strong contemporary testimony of their intentions. The 
sixteenth article of the declaration of rights, contained in the 
former, asserts, that " the liberty of the press is essential to the 
security of freedom in a state ; it ought not therefore to be re- 
strained in this commonwealth." The fifteenth article in the 
constitution of the latter declares in still stronger terms, that 
the freedom of the press is one of the great bulwarks of liberty, 
and therefore ought never to be restrained. 

The Constitution of New-Hampshire contains the same pro- 
vision as that of Massachusetts. Those of Maryland, South 
Carolina and Georgia, also declare the inviolable freedom of 
the press, and the trial by jury, as theretofore enjoyed in those 
several states, as if they meant to pointedly reprobate the con- 
duct of the English courts, in denying the right of the jury to 
decide upon the intent in prosecutions for libels upon govern- 
ment. 

The provisions in the constitutions of some of the sister states 
are still more pointed. That of Pennsylvania, article 9, sec- 
tion 7, declares immediately after the provision relative to the 
trial by jury, that " the printing presses shall be free to every 
person who undertakes to examine the proceedings of the legis- 
lature, or any branch of government, and no law shall ever be 
made to restrain the right thereof;" and after providing for the 
admission of the truth in evidence, it authorizes the jury, upon 
indictments for libels, to determine the law and the facts as in 
other cases. 

The constitutions of Delaware, Illinois, Kentucky, Tennessee, 
Louisiana, Ohio, Indiana, and Mississippi, contain a similar pro- 
vision, and refer particularly to the conduct of public officers, 
as a proper subject of privileged discussion. 

The provision in the Constitution of Vermont, article 13, on 
this subject, is as follows: " the people have a right to freedom 
of speech, and of writing and publishing their sentiments con- 
cerning the transactions of government, and therefore the free- 
dom of the press ought not to be restrained." 



Ill 

These provisions, all declaring the freedom of the press, and 
some pointing particularly at that subject of discussion, which 
in England had been a prohibited topic, i. e., the proceedings 
of government, and the conduct of public officers, furnish 
strong reasons, almost amounting to demonstration, of the abro- 
gation in this country of the distinction which the judges of the 
court had so long endeavoured to preserve in England. 

If the character of our institutions was not in itself a suffi- 
cient argument in favour of a free discussion of the conduct of 
public men; those declarations, by the founders of our political 
institutions, inserted in the constitutions themselves, plainly 
indicate, that their idea of a free press was one which freely 
discussed the measures and conduct of the officers of govern- 
ment, and that they intended expressly to reject the doctrine of 
the King's Bench as to malice being a legal inference. 

The course of legislation sanctioned under these constitutions 
has been in conformity with this idea, and strongly illustrates 
the tendency of our institutions to still further enlarge the free- 
dom of political discussion. The attempt which was made 
during the administration of John Adams, to bring libels against 
the federal authorities under the jurisdiction of the federal 
courts, resulted, as we well know, in the overthrow of the 
dominant party. In that contest the legislature of Virginia 
took the lead, and headed by Madison and Jefferson, after pro- 
testing against the constitutionality of the sedition act, declared 
that " Truth, if left to herself, will prevail. That she is the 
proper and sufficient antagonist to error, and has nothing to 
fear from the conflict, unless disarmed of her natural weapons, 
free argument and debate." 

The legislature of Pennsylvania at a subsequent period, 1809, 
passed an act abolishing all criminal prosecutions for publica- 
tions concerning the government, or investigating the conduct 
of public officers, and leaving individuals who had been injured 
by such publications to their civil remedies. 

So, too, in New- York, when in Croswell's case, in a moment 
of high party excitement, part of the judges yielding to that 
propensity so often found in mere lawyers, to regard authorities 



112 

rather than principles, determined that the truth could not be 
given in evidence, in defence of a political libel ; although they 
were prevented by an equal division of the bench, from intro- 
ducing that monstrous doctrine into the body of American 
jurisprudence, the legislature determined that no doubt should 
exist on that subject, and by a declaratory act declared the truth 
to be a proper and legal defence. 

Massachusetts has established the same doctrine, by a decla- 
ratory act, passed 1827, and has further declared that a plea in 
justification shall not be deemed evidence of the publication, or 
of malicious intent, even though the defendant fail to prove his 
plea. 

From this minute and perhaps tedious examination of the 
history of the law respecting political libels, it appears, that ii 
Eno-land this doctrine of which we complain was introduceo' 
into the common law by the influence of the government ; that 
it then was at variance with, and formed an exception to the 
common law respecting publications, in whose subject matter 
the community was interested ; that this doctrine was always 
complained of, and sometimes successfully resisted, as illegal ; 
that the whigs of England, a party which was generally found 
on the side of constitutional freedom, always protested against 
it, and finally succeeded in triumphing over this encroachment 
on the rights of juries; that the doctrine itself is inimical to the 
freedom of political discussion, and inconsistent with the cha- 
racter of our government, and that in the constitutions of most 
of our sister states, the doctrine is expressly repudiated as in- 
compatible with our system of government. Against these 
arguments, all converging to one point, what can the learned 
counsel for the plaintiff" urge — the opinions of the judges of the 
King's Bench, in prosecutions on the part of the government for 
political libels — opinions originating in Chief Justice Scroggs, 
and ending in Lord Mansfield. They may indeed declaim 
against the licentiousness of the press, and of the impropriety 
of bringing a man's foibles before the public. But it is not the 
licentiousness, but the freedom of the press for which we con- 
tend. This vice of intemperance is not a foible, as has been 



113 

alleged. In public men it is a crime. I do not contend for 
a rigid and austere code, that regards all conviviality as an 
offence against sound morals, but the vice stigmatized in the 
publication complained of, is a great and growing evil. It saps 
the foundation of morals, and when it shall be once tolerated 
in our public functionaries, it will destoy the character of our 
institutions. In- some cases it may demand our forbearance, 
and even our pity. 

When a man, after devoting his talents, and expending his 
fortune in the public service, is seen struggling in the decline of 
life, amid embarrassments resulting from his devotion to his 
country, — deserted by the heartless flatterers who, in his day of 
power, sued for his smiles, — surrounded by money dealers, and 
merciless harpies ; who, like vultures, flock round their prey, 
ere life and sense be gone, we cannot wonder that he should 
seek relief from the cold ingratitude of the world, by steeping 
his senses in forgetfulness. We mourn over the wreck of great- 
ness, and while we condemn his weakness, we pity and forgive 
the infirmity of purpose, which shrinks from contemplating his 
changed and fallen condition. 

Even when men of commanding intellects retire from the 
glorious conflict of mind, and the discharge of duties for which 
the most gifted men, alone, are qualified to indulge in this de- 
grading vice : when yielding to its influence, they hide their 
shame and their infirmity in retirement, admitting the fatal 
effects of indulgence, but still clinging, with blind infatuation, to 
the intoxicating bowl, we may deplore while we condemn the 
weakness of human nature, and mourn over the loss of learning 
and genius ; but here there is nothing of vice to reprobate, ex- 
cept its weakness, and the example has no extensive and deso- 
lating influence. 

But when a man of strong passions and intellect, whose prin- 
ciples render him popular, and whose political course has ele- 
vated him to power, as the favourite of his party, — when such a 
man indulges in the stimulus of the bowl, there is danger in the 
example, lest it sanctify the vice, and render it contagious. 
Should such a man be found in a high and prominent station 

15 



114 

where the notorious exhibition of his infirmities, must attract the 
attention of the community, — affecting the character of his con- 
stituents, not merely in the opinions of the world, but by the sure 
though imperceptible contagion which always follows vice, 
practised with impunity, and placed above condemnation by 
the rank and popularity of the offender, — in such a case it is the 
task of a patriot, it is the duty of every citizen, loving his country, 
and prizing the purity and stability of her institutions, to strip 
the mask from vice in power, and in strong and nervous lan- 
guage, to hold up the violator of public decency, to the merited 
scorn and indignation of society. 

This is the case before the court, and we complain that the 
jury were not permitted to pass upon the motives of the defend- 
ants in making the publication complained of, as they would 
have been in the trial of any other libel, the subject matter of 
which was important to the public. The repudiation of the 
doctrines laid down at the trial of this cause is required, to re- 
store the unity and harmony of the common law. Under the 
opposite principle, the intention then becomes, as it ought to be, 
the criterion of guilt. If the mind is not guilty, the act is not 
criminal. This is a maxim of the common law in all its branches. 

If the publisher intend to tell the truth for justifiable purposes, 
the law does not infer that his intention is malicious. You pro- 
hibit free discussion for all useful ends if you adopt any other 
principle. You may indeed preserve the form ; but the vigour 
and life of free discussion, the boldness of remark, the active 
spirit of investigation into public abuses will have departed. 
What indeed can be expected from writers, cowering under 
the uplifted scourge of such a maxim ? whom no purity of in- 
tention, no singleness of purpose, nor patriotic views can save 
from being classed and punished with the criminal libeller and 
defamer ? No matter how strong his belief, how unsuspecting 
his good faith ; no matter how convincing the evidence pre- 
sented to his mind ; no matter how urgent the necessity of in- 
forming the public, if his communication does not conform to the 
evidence laid before the jury ; if his assertions do not square 
with the conclusions of men equally fallible with himself, his 



115 

intentions are to be deemed malicious, and himself liable to 
punishment. It is no answer to say, let men in publishing 
strictly adhere to the truth. It is a sufficient reply to this, that 
it is not in conformity with the common law concerning libels 
of this class, which makes due allowance for human fallibility. 
If man were of a different natui-e, and possessed of unerring 
judgment and sagacity, no objection could be made to this rule. 
They then would know what truth was. They would not be 
compelled to inquire with Pilate, when the Saviour of mankind 
was arraigned before him for preaching false doctrines, what is 
truth 1 They would know, and if they erred, they would sin 
against light and knowledge. They would intend to libel, and 
their intention would render them guilty. But to make it their 
duty to speak, and to punish them for speaking what they be- 
lieve to be true, is punishing them for their fallibility, and not 
for their guilt. It is visiting upon man what, if it be wrong, is 
the error of his Maker. A principle like this is the essence of 
tyranny. It loses sight of the eternal distinction between right 
and wrong, and would be monstrous in any government. 

In this government, it is fraught with the most pernicious 
consequences. The chief subjects of political discussion in a 
representative form of government, must be the conduct and 
principles of those who administer it, or in other words, the 
conduct and principles of the dominant party. So long as these 
are examined in a fair spirit of inquiry, with the view of im- 
parting information to the public, and with honest intentions, 
the limits of discussion cannot be extended too far. In other 
countries, public opinion most generally acts as a check upon 
the government, whose official interest is somewhat at variance 
with the wishes of the people. It therefore is naturally arrayed 
on the side of those, who are prosecuted for political offences, 
and is a sure ally in their defence against the power of the go- 
vernment. As in England, it is the judge between the accuser 
and the accused. But in this country, it is the source and origin 
of political power. It stands in the double character of party 
and judge ; and unless it can be addressed with freedom and 
boldness on the conduct of public officers, no abuses on the 



116 

* 

part of those in power can be redressed. The avenue to the 
pubHc mind will be closed ; for who will accuse a party of doing 
wrong, when the members of that party are to decide as jurors* 
simply upon the truth of the accusation, without reference to 
the motives and belief of the accuser? No reform, even in the 
worst state of public affairs, can be effected, when such a doc- 
trine prevails in a court of law. But with a press protected in 
the legitimate scope of its functions, by an appeal to the in- 
tegrity and uprightness of purpose characterizing its publications, 
a majority however overwhelming can be kept in check, and 
within constitutional bounds. An appeal to such motives, when 
they are recognised by the law as forming a good defence, wjll 
obtain a hearing even in the excitement and heat of political 
conflicts. 

On the other hand, those who administer the government are 
protected from unbounded abuse and calumny, by requiring 
qualities entirely incompatible with intentional falsehood. 

But if the law infers malice when the charge is untrue ; if error 
is to be the criterion of guilt, and a jury is required to decide 
upon the truth of political publications, and not upon the motives 
of their authors, and in so deciding, perhaps to condemn the 
course of those whom they have elevated to power, the rights 
of the minority will be placed at the mercy of the ruling party 
of the day. The sacred walls of the temple of justice will re- 
sound with the clamour of faction, and the accused will be ac- 
quitted or condemned, not in conformity with the principles of 
equity and law, but according to the excited passions and erring 
judgment of a fallible and prejudiced jury. The only security 
which the minority now have, or can have, against the abuses 
of power, will be destroyed. The dominant party take posses- 
sion both of the government and of the jury box, and exercise 
their authority without the fear of censure or control. The 
press in effect is silenced ; and under the semblance of freedom, 
the worst kind of despotism is introduced, — the despotism of 
faction, which sacrifices the rights of the minority according to 
the forms of the constitution, and silences all remark, and sup- 
presses all investigation according to the forms of law. 



117 

I am shocked to think, that a doctrine pregnant with such 
consequences should be advanced in a court of justice in this 
country ; and that it should now be a question in the court of 
last resort, whether we should go back to the principles of the 
Tudors and Stuarts — to arbitrary maxims invented to suppress 
political discussion ; or adhere to maxims which are in accord- 
ance with the just and mild spirit of the common law, when not 
warped to subserve the designs of government. Upon these 
maxims depend the freedom of political discussion. It cannot 
exist where they are frowned upon ; and in the melancholy 
history of the progress of truth upon earth, you may see their 
violation, whenever a martyr for truth's sake was to be offered 
upon the shrine of human error and passion. When the Saviour 
of mankind came upon earth to promulgate the doctrines of 
charity and peace, his intentions were not questioned by the 
priests and rabble that called for his crucifixion ; but they de- 
manded his life because his doctrines were not true. For ages, 
his disciples were dragged to the stake as schismatics and here- 
tics, or rather as victims to sustain the heathen superstitions, 
which they were destined finally to overthrow. 

When this Church, established by their blood, became in after 
times corrupted through the inventions of man, seeking to 
gratify his avarice and lust of power by the aid of religion, did 
those who endeavoured to restore the primitive faith meet with 
a kinder hearing or a milder fate ? No ! Other victims were 
demanded, and the councils of Constance and the fires of Smith- 
field afford ample evidence of our weakness and fallibility, 
when error and truth appear as antagonists before human tri- 
bunals. Nor is it in religion alone, that error has wielded the 
tyrant's rod, while truth has suffered the martyr's fate. Even 
in the physical sciences she has usurped the censor's chair, and 
condemned the humble disciples of truth to imprisonment and 
death. 

Need I name Galileo, imprisoned in the dungeons of the in- 
quisition for declaring that the sun was in the centre of the 
solar system. That eternal truth was then deemed heresy, and 
the Italian philosopher suflfered, not for his criminal intentions, 



118 

but for his promulgation of error ? The history of poHtics is 
full of the violations of this principle, and of the injustice per- 
petrated by error in the ascendant, upon the advocates of a 
better and freer system of government ; but in all these in- 
stances, it is consoling to find that the " good old cause" has 
constantly advanced in the opinions of mankind. Hampden, 
when contending for the exemption of Englishmen from arbi- 
trary taxation, was condemned by the subservient judges who 
then sat in the exchequer chamber ; but in a few years the 
judgment was reversed by the commons of England. Alger- 
non Sidney expiated his offence, for denying the divine rights 
of the Stuarts, upon the scaffold ; but the expulsion of that ill- 
fated family from their country, and the reversal of his attainder, 
followed close upon his condemnation. The decision of the 
King's Bench against the freedom of the press, in the case of 
Woodfall, was subsequently overturned by the declaratory act 
of Mr. Fox, passed with the almost unanimous consent of the 
British Parliament. Such has been, in past ages, the fate of 
all who ventured to question the conduct of those invested 
with power, to suffer in their own persons for the success of 
the cause ; and such will always be their fate, until courts shall 
learn to inquire concerning the intentions of the accused, in- 
stead of setting themselves up as arbitrators between truth and 
falsehood ; — until in trials for political libels, as in trials for all 
other offences, the intention shall be a question of fact, for the 
decision of the jury ; — until good faith, integrity of purpose, 
and honest intentions, shall serve as a protecting shield for all 
who are compelled to pass through the furnace of political per- 
secution. 

I know that these doctrines are unpalateable to those who, 
for the time, are invested with power. They teach them to 
question themselves ; to doubt of their infallibility ; to examine 
their darling prejudices ; to relinquish long established opinions; 
to review, and even to condemn their own conduct. They re- 
quire them to listen, and sometimes to yield, to the remon- 
strances of a minority, which they are but too much inclined to 
oppress. 



119 

Yet with these maxims, has the principle of free political 
discussion, — that guardian genius of the rights of mankind, 
made her way through the world, in spite of the tyranny of 
governments and the prejudice of the governed ; against the 
teachings of the schools, the denunciations of the pulpits, the 
influence of the aristocracy, and the power of the crown. In 
spite of the rack, the axe, and the bayonet, she has established 
her dominion in the old, and extended her sway over the new 
world. The gloom of the cloister disappeared in her light; 
the scholastic and feudal systems, the offspring of error and 
ignorance, fled from her glance ; the bastile and the inquisition 
crumbled before her march ; the colonial fetters of rising em- 
pires were shaken off" at her command, until she who within 
two centuries endured imprisonment in the dungeon with 
Gahleo, and bowed her head on the scaffold with Sidney, 
assumed the arbitrament of the claims of nations, and sat in 
judgment on the fate of monarchs. I trust in God that this 
triumphant career is not destined to meet with a check in this 
country, which owes so much of its prosperity and happiness to 
the prevalence of this principle ; and that this court, possessing 
a representation of the learning of the legal profession, happily 
combined and tempered, through the electoral principle, with 
the spirit of the age, will not lay its parricidal hands upon a 
principle, to which it is indebted for its very existence. 



HISTORICAL VIEW 



OF THE 



FORMATION OF THE CONFEDERACY. 

ADOPTION OF STATE CONSTITUTIONS.— ARTICLES OF 
CONFEDERATION.— LIMITS OF STATES. 



Afteh the conclusion of the war of 1763, the British minis- 
ters seem to have adopted a more rigorous and uniform system 
of government for the North American Colonies than they had 
before been subjected to. As this ministerial project was regard- 
ed by the Americans, (to use the words of the eloquent Burke,) 
" as a system of perfect uncompensated slavery, in which the 
restraints of an universal internal and external monopoly were 
joined with an universal internal and external taxation ;" they 
prepared to resist the designs of the mother country with the 
spirit of freemen. This determination was not a transient 
feeling ; but a deep, enduring sentiment, pervading the whole 
mass of society ; supplying the place of laws and government, 
and inducing the colonists to place their persons and fortunes 
upon the hazard of successful resistance. In order to concen- 
trate their forces, and to act in their common cause as one 
people, the leaders of the opposition were invested with power, 
by the primary assemblies, to represent the different provinces 
in a Continental Congress, and to act in their behalf, for the pur- 
pose of procuring a remedy for the evils with which they were 
threatened. 

The first meeting of this body was held September 5, 1'774 ; 
and in that body twelve of the colonies were represented by 

16 



the consent of the people. In this Congress it was determined 
to adopt such measures of resistance to the designs of Great 
Britain as did not necessarily imply a hostile disposition. An 
agreement neither to import nor consume British goods, nor to 
export produce to Great Britain, wa^ entered into by the dele- 
gates for themselves and their constituents, and remonstrance 
and petition employed to avert the crisis which was manifestly 
approaching. In these acts, and the pledges which were mu- 
tually given, both by the delegates of the several colonies, and 
by the people in their primary assemblies, is to be seen the germ 
of the American Republic. 

The next year, on the ever memorable 19th of April, the 
inhabitants of Lexington and Concord, in accordance with 
public sentiment, and (it may be said) the tacit general under- 
standing of the colonists, in resisting the British troops, com- 
menced hostilities, and thus put the respective rights and claims 
of the two countries upon the arbitration of war. 

On the 10th of May, the delegates of the same provinces 
met again in Congress, and formally made the cause of the pro- 
vincial troops round Boston, the cause of the colonies. They 
acknowledged it to be their own, and prepared to prosecute it 
with the same spirit with which it had been commenced. Steps 
were taken to place the colonies in a state of defence ; rules 
and regulations framed for the government of the troops ^ 
measures adopted to expel the enemy from the continent ; a 
large force assigned for the siege of Boston ; bills of credit, to 
the amount of $2,000,000, issued, and the faith of the twelve 
colonies pledged for their redemption ; negotiations commenced 
with the Indians, to engage their friendship and neutrality ; 
and a resolution passed, " prohibiting all intercourse with Geor- 
gia, except St. John's Parish, (which had then renounced all 
connection with the rest of the province,) Canada, Nova Scotia, 
Newfoundland, the island of St. John, and East and West Flo- 
rida, as dependencies of the common enemy, until the further 
order of Congress." 

In short, Congz'ess assumed, in behalf of the country, the 
character of an independent nation, to effect certain specified 



123 

objects ; and the colonists ratified their proceedings, and con- 
ferred upon that body, by the resolutions passed in their pri- 
mary assemblies, the powers of national government, so far as 
they should be required for the accomplishment of the objects 
proposed. These were, by negotiation or force, to bring the 
mother country to a sense of what was due to the colonies, 
and to settle the existing difficulties upon a permanent and 
equitable footing. 

About three months after the commencemeTit of hostilities, 
Georgia acceded to the confederation, and, of course, made 
herself a party to the proceedings, views and responsibilities of 
the other provinces. 

In the course of the contest its character changed. The more 
full developement of the ultimate designs of the British govern- 
ment had convinced the colonists that there could be no safety 
in any connection with England, and they resolved upon sepa- 
ration. On the Fourth of July, 1776, by an unanimous vote of 
the Continental Congress, "these United Colonies were de- 
clared to be free and independent states," and all political con- 
nection between them and Great Britain to be totally dissolved. 
This declaration was anly a public acknowledgment and justi- 
fication of the resolution, which had been previously adopted. 
Nearly two months previous to that period they had manifested 
their determination, by recommending to the several provinces 
to form new civil governments. It would be difficult, among 
the many acts of resistance to the royal authority, to point out 
in the proceedings of the leaders of the Revolution, the first 
act by which they first indicated their determination to be a 
separate nation ; but this manifesto gave the most satisfactory 
evidence of their resolution, and pledged all the colonies to its 
execution. 

By this instrument, and the subsequent proceedings thereon, 
the American people declared themselves to be an independent 
nation, then at war with Great Britain ; but as such, the whole 
were responsible to all the world, for the acts of the citizens of 
each and every of the colonies. They were free and inde- 
pendent, not as isolated states, but as the United States of 
America ; and as such only could they be regarded by mankind. 



124 

As between themselves, they were bound together by their 
acts and declarations ; although the terms and conditiuns of 
their union were not properly defined. They comprehended, 
however, all that was necessary to prosecute the war to a suc- 
cessful result. To this they had pledged themselves; and, 
however Congress might have been disposed to conciliate and 
to persuade the several states, instead of resorting to coercive 
measures, no doubt can be entertained, that a refusal to comply 
with its requisitions upon any of the states for the public ser- 
vice, was a violation of faith, and that a withdrawal from the 
confederacy by one of its members, would have been a good 
cause of war, and have justified the invasion and conquest of 
that state by the rest of the union. The force of circumstances 
had formed them into a nation, one and indivisible, and insti- 
tuted a general government, long before the state constitutions, 
or the articles of confederation, were framed. As such they 
were regarded by other civilized nations ; and in that character, 
anterior to the adoption of any federal constitution, or articles 
of confederation, they had entered into a treaty of commerce 
and an offensive and defensive alliance with France ; and had 
undertaken, in conjunction with that kingdom, important enter- 
prises, which pre-supposed the existence of a national govern- 
ment, and that that government possessed certain extensive 
powers over the people of the United States. 

With Great Britain, they were in a state of war, striving to 
expel her troops from the continent, and to appropriate for 
themselves as much of it as they could gain by force. "With 
this view, expeditions were undertaken against the several 
British posts within the thirteen states, in Canada, the North- 
West Territory, and St. Augustine, in Florida. 

As to the other European powers, they were but one people, 
and known either as the United States of America, or as the 
insurgent colonies of Great Britain. While among themselves 
they were communities formerly distinct for all the purposes of 
local legislation ; though subject in some matters, and especially 
in all matters relating to Indian tribes and their territory, to the 
legislation of the mother country and the royal authority ; but 



125 

now united by common wrongs and common apprehensions in 
one cause, and obliged to provide new political institutions to 
meet the exigencies of their novel situation. 

This subject early engaged the attention of the actors in the 
Revolution ; and the novel spectacle was presented of a people 
contending for freedom and independence with a power, whose 
fleets and armies threatened their extermination, and occupied 
with arms in their hands in laying the foundations and erecting 
the superstructure of their political institutions. Since the time 
when Nehemiah rebuilt Jerusalem, there had not been seen a 
community, of whom it could be so emphatically said ; " every 
person with one of his hands wrought in the work, and with the 
other hand held a weapon." 

Although, in the first burst of resistance, the place of civil 
government was supplied by public sentiment, and the powers 
of the Provincial and Continental Congresses ; still the neces- 
sity of adopting a more regular, and belter defined political 
system, was admitted by all. Congress, acting upon this con- 
viction, on the 15th of May, 1776, recommended to the people 
of the several colonies " to adopt such government as should 
in the opinion of the representatives of the people, best conduce 
to the happiness and safety of their constituents in particular, 
and America in general."* 

Pursuant to that recommendation, the local conventions pro- 
ceeded to prepare constitutions for each of the several colonies ; 
and their delegates in the Continental Congress endeavoured 
to frame an acceptable system of government for the confede- 
racy, by which the very indefinite powers possessed by that 
body might be distinctly marked out, and the respective rights 
and obligations of the general and local governments properly 
defined. 

The inhabitants of the old British Colonies, thus proceeded 
simultaneously to institute the political system, under which they 
were to exist as an independent community, united for some 
purposes, and separated for others. The local governments, 

* First Journal Old Congress, 339, 345. 



12G 

l^eing more simple in their nature, and less extensive in their 
operation, were more readily agreed upon, and earlier esta- 
blished ; but the intention of forming a national government 
was so early and so universally adopted, that it may be safely 
asserted, that the American people never entertained the idea 
of existing in independent and separate states. 

They meant to be one and indivisible ; and the only difficulty 
was how to apportion the powers of government, so as to give 
to Congress such powers as would enable it to represent and 
protect the national interests, without encroaching upon the 
state authorities, to whom was confided the care of the local 
interests. Instead, therefore, of regarding the general govern- 
ment as formed by concessions on the part of the state govern- 
ments ; it is to be considered as equally the establishment of 
the people, who, for the sake of convenience, after framing its 
constitution in a general Congress, expressed their assent to its 
provisions through their local assemblies, and apportioned to 
each its political powers, by the constitutions provided to guide 
those to whose hands the administration of the government was 
confided. 

This apportionment, however, only referred to what then 
existed, and not to what was subsequently acquired by the 
thirteen states in their confederated character. For instance, 
if any thing had been acquired by conquest from Great Britain, 
as military munitions, or a province not acceding to the Union, 
or uncultivated and unappropriated territory, it is clear that such 
acquisition would have belonged to the confederacy, and not to 
the states separately. It would have constituted a common 
fund, to be appropriated for the prosecution of the vrar, the 
reimbursement of the public creditors, or in any other way for 
the general benefit. What belonged to the colonists, either in- 
dividually or as provincial communities, was apportioned at the 
commencement of the R;iVolution among the several govern- 
ments ; but all acquisitions by conquest necessarily fell under 
the jurisdiction of the national government. As the property 
of the crown, it became the right of the opponent of the crown ; 
as an acquisition in war, it was vested in that party which car- 



12? 

fled on the war. This opponent of the crown was the Ameri- 
can people, represented in Continental Congress. The quarrel 
was theirs, and theirs only, and to them, in their collective 
capacity, belonged the acquisitions and results of that war. 

It was soon, however, foreseen, that in case of success it 
would be difficult to define the boundary, between what was 
conquered from Great Britain, and what had previously be- 
longed to the colonists as distinct communities. This question 
was intimately connected with another, touching the Indian 
title to the territory occupied by them, and the right of pre- 
emption of that title. This right of pre-emption, according to 
the English doctrine, belonged to the crown ; excepting in the 
states of Massachusetts, Rhode Island and Connecticut, where 
it was vested in the colonists, and in Pennsylvania and Mary- 
land, which were proprietary governments. AVhen the autho- 
rity of the crown was thrown off, it was natural and proper 
that those aborigines who were surrounded by the white popu- 
lation, and vi'ithin the actual jurisdiction of the local legislatures, 
should be confided to their superintendence. Without any of 
the attributes of independence ; unable to protect themselves 
from their neighbours, and even from their own passions ; and 
almost on the point of dissolution, as most of the tribes sur- 
rounded by the whites soon become, it was humane and neces- 
sary that those who were able, should assume the power and 
right of protecting and governing them. They could not be 
regarded as fit subjects for the care of a government instituted 
for national purposes ; but formed a part of the several com- 
munities in which they resided, as the gypsies formerly made 
a part of many of the European states. 

On the other hand, those tribes which did not come in con- 
tact with even the frontier settlements of the colonists, as natu- 
rally fell within the jurisdiction of the general government. 
They were independent in fact; under the government of their 
own chiefs and national councils ; and at the formation of our 
government, so far from claiming any authority over them, great 
solicitude was manifested, and great pains taken by the public 
authorities to conciliate them, and to preserve their friendship 
or neutrality in the impending contest 



I2S 

Other tribes, almost in contact with the white settlements, 
without being enveloped by them, could not be so distinctly 
classed. They were too powerful and too well organized to 
be ranked with the former as under no government of their 
own, and still they were so connected with the colonists and 
the crown by treaties, as to be considered partly dependent. 

The same state of things existed as to the western boundaries. 
With the exception of Maryland, Pennsylvania, Delaware, 
New-Jersey and Rhode Island, the chartered limits of the pro- 
vinces were very indefinite. So far as the states had any 
existence independent of the royal charters, they were com- 
munities confined to the eastern side of the Appalachian moun- 
tains. To the extent of their continuous settlements, and, in- 
deed, to the utmost limits of their usual and actual jurisdiction, 
no doubt could be entertained as to the right of the several 
states. As little could exist as to the right of the confederacy 
to that territory, which had been placed beyond the provincial 
limits by the crown, and which, consequently, was an acquisition, 
by war, from Great Britain. It was difficult to define the extent 
of these respective rights ; and this difficulty was increased by 
the conflicting claims of the different states as to their own 
boundaries. Another question was also presented by the nature 
of the Indian title, and the doctrine that notwithstanding this 
title, the ultimate dominion, or right of pre-emption, belonged 
to the crown. Within the acknowledged limits of many of the 
states, the Indians still claimed and occupied large tracts of 
territory, to which their title had not been extinguished. 

Here, again, were conflicting claims. The confederacy con- 
tended, that all this was royal property, and therefore became 
vested in the antagonist of the crown. The states insisted that 
they possessed the sovereignty over the soil, and that that car- 
ried with it the property. These complicated difficulties left 
no other alternative, than to arrange the matters by compro- 
mise and negotiation. 

Under these circumstances, the local conventions and Pro- 
vincial Congresses proceeded to institute state governments, 
and the Continental Congress to frame articles of confederation, 
for the direction of the general government. 



RELATIONS 



BETWEEN 



THE CHEROKEES 



AND THE 



GOVERNMENT OF THE UNITED STATES. 



The relations existing between the government of the United 
States and the Cherokee nation, are now rendered more worthy 
of examination than ever, by the late proceedings at Washing- 
ton. 

The character of the confederacy of the United States, (which 
directly depends upon the proper adjustment of these relations,) 
is a subject of great interest, both to the present generation and 
to posterity. It is regarded by the contending parties through- 
out the political world, as the great exemplar of free govern- 
ments, and upon its conduct and success depends the speedy 
advancement, or the temporary defeat, of the liberal party. Its 
force is not a physical, but a moral force. It consists in a na- 
tional character, unsullied by injustice and oppression. The 
inquirer cannot find in their annals the records of successful 
and unprovoked invasions — of triumphs achieved over the rights 
of nations and humanity. The government of the nation has, 
on all occasions, appealed to reason as its standard, and by that 
standard it will be judged. After a profession of its principles, 
so openly and so often reiterated, it cannot shape its course ac- 
cording to the dictates of a temporizing, prevaricating policy. 
It must act up to its principles, or it must disavow them. The 
path of honour and justice is open, and it may travel on alone, 
sustained only by the moral strength, which a strict adherence 

17 



130 

to the maxims of integrity gives to a nation ; or it may shrink 
from its high destiny, and, Hke the members of the Holy Alli- 
ance, stoop to share in the petty plunder, derived from stripping 
the weak and the defenceless of their possessions. If it be 
emulous of the fame of the partitioners of Poland, the invaders 
of Spain, and the plunderers of India ; an opportunity to equal, 
and even exceed them, is forced upon the government of the 
United States, by the conduct of the state of Georgia ; and 
upon the disposition of that question rests the future character 
of our country. By the rash and unjustifiable measures of that 
state, the national government is compelled to become a parly 
to the forcible removal of the Indians within its limits, or to 
protect them in the lawful enjoyment of their rightful posses- 
sions. 

In an age like this, with a free press, and thousands ready 
and willing to vindicate the rights of the meanest and most de- 
fenceless ; we cannot, if we would, dispose of thousands of 
human beings, like cattle, without inquiry. Their wrongs will 
go forth to the world, and the agency that we have in their final 
disposition, must make part of the national history. Let us, then, 
as we value the opinion of mankind, as we regard the approval 
of our consciences, examine well the relations between the 
white inhabitants of the United States, and the surviving abo- 
rigines, before any irrevocable step be taken. 

Scarcely two centuries have elapsed, since the Europeans 
landed upon the American continent. They then found the 
country covered by the native tribes of the new world. The 
resources of the country were not so fully developed, as if civil- 
ized men had applied their faculties and arts to that end. Ag- 
riculture, commerce, and manufactures, did not flourish, as if 
under the control of civilization. This, however, did not give 
to Europe aright to depopulate America. To vacant territory, 
the white comer had as good a right as the tawny native ; but 
to occupied territory, to land appropriated to the purposes of 
planting and hunting, the Indian had a right, which was as valid 
as that of an English nobleman to his extensive manor and va- 
cant park. The history of the early colonial settlements, shows 



131 

this right to have been generally respected ; and purchases were 
made from the native chieftains by the first settlers, of large 
tracts of land, for which a valuable consideration vv-as given. 
Notwithstanding the fairness of the public authorities, injustice 
was occasionally practised by individuals ; and the ignorant 
and untutored savage was often driven, by these unauthorized 
wrongs, into indiscrinninate hostihties with the colonists. If, in 
the conflicts, their numbers were wasted, and often whole tribes 
were exterminated, one could only lament the hard fate which 
seemed inevitable. The peculiar situation of the colonists, and 
the habits of their foes, impelled them to that course. With 
the founder of Carthage, they might have truly said, 

" Res dura et regni novitas nos talia cogunt 
Moliri." 

In the lapse of time, however, this necessity ceased : and the 
philanthropic men who guided the councils of these states, when 
they were uniting as one nation, determined to make an effort 
to preserve the remnant of the American Indians from the de- 
struction to which they were visibly hastening. A peculiar race 
of men was wasting away — a race, distinguished for many noble 
and exalted qualities, was daily diminished by the sword, the 
pestilence, and the vices which they had acquired from the ex- 
ample of the Europeans, without adopting the political and 
social system, which deprived those vices of their exterminating 
qualities. In a few more generations, unless some effort should 
be made for their preservation, they felt that the aborigines 
would cease to exist, and the race be numbered with those, 
whose language and habits only afford scope for the speculative 
inquiry of the antiquarian. This decay, too, had commenced 
upon the arrival of the Europeans, and seemed to be a conse- 
quence of their contiguity. As philanthropists, therefore, and 
as patriots, watchful over the national character, they were 
desirous to rescue the Indian from extinction, and to elevate 
him to the rank of civilized man. They felt this to be due, not 
only to the savages and to their own character, but it was a just 
tribute to their ancestors, who had founded this empire of civilized 
humanity in the American wilderness, to serve as a refuge from 



132 

the oppression and injustice of the old world. They could not 
bear, that their fathers should be reproached as the merciless 
extirpators of the aboriginal race. They had no ambition to be 
ranked with the Goths and Vandals, who destroyed the Roman 
empire ; with the devastators of Europe ; or with the unrelent- 
ing conquerors of Hispaniola and of Mexico, who laid the foun- 
dations of their sway in the destruction of the native inhabitants 
of those countries. While they anxiously sought to perpetuate 
and extend the Anglo-American republic, they were not regard- 
less of the untutored savages within its limits. They intended, 
if possible, to elevate them to an equality with themselves, by 
affording to them all the helps of civilization ; and, at all events, 
to preserve themselves, in case of their extinction, from all par- 
ticipation in hastening that unhappy result. 

As civilized men, and as Christians, they were bound to 
extend the benefits of their superior knowledge to the Indians. 
The preservation of the savage from extinction, and his ad- 
vancement in the scale of creation, depended, in a great degree, 
upon the conduct of his civilized neighbours. This duty was 
rendered more imperative by the unauthorized wrongs to which 
the aborigines were subjected by individual rapacity, provoking, 
as they frequently did, contests, where, from the hard necessity 
of the case, the Indian, though not always the aggressor, was 
invariably the sufferer. 

Whilst the British government claimed the sovereignty over 
the country, an adequate excuse was perhaps offered for not 
adopting any general plan for the improvement and civilization 
of the natives. Individual efforts were not wanting, and the 
names of Winthrop, Williams, Baltimore, Penn, Oglethorpe, 
Elliot, and Brainerd, are sufficient to rescue our ancestors from 
the charge of indifference on this important point. 

Upon the assumption of independence, however, the whole 
responsibility devolved upon those who founded the American 
government. A wider field was opened for the exercise of all 
the noble and exalted qualities, which distinguish those who ad- 
minister government for the benefit of society, from those who 
usurp it for themselves. By settling among the aborigines, and 



133 

by elevating their country to tlie rank of an independent power, 
our ancestors charged themselves with all the responsibilities 
which grew out of the relations existing between educated and 
civilized Christians, and the ignorant and savage heathen 
who surrounded them. 

A principle had, indeed, been adopted by all Christendom, 
which vested, so far as European consent could vest, the sove- 
reignty of the country in the first European discoverers or occu- 
pants, to the exclusion of all other European nations. This 
gave to the United States, upon the acquisition of their inde- 
pendence, the sovereignty within certain limits, as against any 
adverse European claimant. This was but a qualified sove- 
reignty. It was a right of sovereignty as against foreign 
nations ; and the government also assumed authority as sove- 
reign over its own subjects, to prevent American citizens from 
interfering with the territory in possession of the Indians, which, 
upon the extinguishment of the aboriginal title, it claimed as 
public property. It did not, however, claim the right to appro- 
priate the soil, without the consent of the native inhabitants. 
In no province did the colonists conceive their title to be good, 
so long as the Indian title remained unextinguished. To the 
honour of the country be it recorded, that in no instance did the 
public authorities sanction the abominable doctrine, that civili- 
zation gave to the white man a right to exterminate or enslave 
the native, or to confiscate or appropriate the property or land 
of his tribe. These Indians, whatever may be thought of the 
wisdom of that Providence who so ordered it, were the original 
occupants and owners of the country. They had enjoyed it 
from immemorial time. Our ancestors, indeed, had a right to 
land on this continent, and to occupy as much vacant soil as was 
necessary for their accommodation ; but neither they, nor any 
other men, had a right to drive the aborigines from their posses- 
sions. This right of accommodating themselves, by occupying 
vacant land in a wilderness, must be so exercised as not to in- 
terfere with the rights of others. It is founded upon a presump- 
tion, that the Deity intended the soil for cultivation ; but the 
Deity also created the Indian to enjoy the soil after his manner; 



184 

and unnecessarily to deprive him of his limited enjoyment, 
would not only be unjust, but cruel. Such are the great and 
immutable principles of morality and natural jurisprudence. 

The Indians were not subjected by any right of conquest ; 
and the abominable doctrine of the ancient Papal Church, that 
the property and persons of the heathen were the lawful prey 
of Christians, had been long rejected as one of the maxims of 
a barbarous age. The Indians were, therefore, to be treated 
as a separate and independent people, governed by their own 
customs and laws, and occupying their own territory. All in- 
terference with them on the part of the whites was regulated 
by treaty, and their territory was to be acquired only by com- 
pact. Such were the principles adopted by the government of 
the United States at its formation in regard to the aborigines. 
They had been generally conformed to by the colonial govern- 
ments ; but the national sanction then given to them was of a 
more deliberate and solemn character. At the same time, they 
undertook the fulfilment of the duties growing out of the supe- 
rior relation in which they stood. In the moment of impending 
peril ; at the commencement of their desperate struggle with 
the mother country — when they knew that years of suffering 
and trial must be endured before the attainment of their right 
of self-government, they forgot not their obligations towards 
the aborigines ; but deliberately adopted, as a part of their 
national policy, a plan to improve their condition. 

They exhorted them to stand aloof during the approaching 
conflict. An Indian department was organized, to be admin- 
istered by commissioners, and in the same year that the Decla- 
ration of Independence received the sanction of Congress, 
resolutions were also adopted providing for the protection and 
improvement of the Indians, and recommending measures for 
the propagation of the Gospel, and the cultivation of the civil 
arts among them. With this view, provisions were made regu- 
lating the Indian trade, and a deliberate scheme of policy 
adopted for their gradual improvement and civilization. Trea- 
ties were made with the principal tribes, defining the boundaries 
between their territory and that belonging to the whites ; and 



135 

the United States agreed to furnish, at their expense, the prin- 
cipal tribes with domestic animals, implements of husbandry, 
blacksmiths, and, in some instances, "suitable persons to teach 
them to make fences, cultivate the earth, and such of the do- 
mestic arts as are adapted to their situation." The object of 
these treaties cannot be misunderstood. It was an offer on the 
part of the national government to the savage of civilization. 
It was a manifestation of one of the most glorious attributes of 
superior intelligence, and breathed the purest spirit of a religion, 
which proclaims peace on earth, good will among men. 

This offer was accepted on the part of the Indians. Amidst 
all the degradation which had attended their intercourse with 
the whites, they always manifested an earnest wish to preserve 
their race from extinction, and to partake of the improvement 
of their civilized brethren. 

Upon this footing matters stood at the commencement of the 
independent existence of this Republic. The whites claimed 
sovereignty over the whole territory, to the exclusion of foreign 
nations, but did not assume to exercise any of its rights over 
the Indians. The tribes were treated as distinct and indepen- 
dent ; and the boundaries between the respective territories of 
the two parties were marked out by treaty. Congress, under 
the old Confederation, did not presume to extend its jurisdiction 
over the territory which the Indians had reserved to themselves; 
and it always strenuously denied that the state governments had 
any right to interfere with Indian affairs. The United States 
were seeking to civilize the Indians, and to render them a sta- 
tionary people, depending for subsistence on the cultivation of 
the soil. All this, however, was attempted to be done by the 
moral influence of precept and example. 

It must be borne in mind, that, in establishing these relations, 
the white man was the lawgiver, and the Indian acceded to 
them, because he was made to believe that they would result 
to his benefit. 

It was implied that they would ultimately eventuate in the 
establishment of the aborigines, as a civilized community, within 
the territory secured to the tribes by the treaty. On no other 



136 

supposition can the National Government escape from the im- 
putation of holding out deceptive expectations to the Indians. 

The good faith heretofore manifested by the federal autho- 
rities, conclusively shows, that this was the result which was 
desired. The first section of the act making an annual appro- 
priation for the civilization of the adjoining tribes, affords a 
memorable proof of the sincerity of its intentions : — " For the 
purpose of providing against the further decline and final ex- 
tinction of the Indian tribes adjoining the frontier settlements, 
and of introducing among them the habits and arts of a civilized 
life, the President of the United States is authorized, when he 
shall judge improvement practicable, and that the means of in- 
struction can be introduced with their own consent, to employ 
capable persons, of good moral character, to instruct them in 
the mode of agriculture suited to their situation, and for teach- 
ing their children," &c. 

The talk of Mr. Madison to the Indians, in 1812, affords 
another proof of its sincerity ; and, as the manifesto of the 
American government, we shall submit a part of this document 
to the public. 

" I have a further advice to my red children. You see how the 
country of the eighteen fires is filled with children. They in- 
crease like the corn they put into the ground. They all have 
good houses to shelter them from all weathers, good clothes 
suitable to all seasons ; and as for food of all sorts, you see they 
have enough and to spare. No man, woman or child, of the 
eighteen fires, ever perished of hunger. Compare all this with 
the condition of the red people. They are scattered here and 
there in handfuls. Their lodges are cold, leaky and smoky. 
They have hard fare, and often not enough of it. 

" Why this mighty difference ? The reason, my red children,, 
is plain. The white people breed cattle and sheep. They spin 
and weave. Their heads and their hands make all the elements 
and productions of nature useful to them. 

" It is in your power to be like them. The ground that feeds 
one lodge by hunting, would feed a great band by the plough 
and the hoe. The Great Spirit has given you, like your white 



137 

brethren, good heads to contrive, and strong arms and active 
bodies. Use them like your white brethren of the eighteen 
fires, and, like them, your little sparks will grow into great fires. 
You will be well fed, dwell in good houses, and enjoy the hap- 
piness fiDr which you, like them, were created. These are the 
words of your father to his red children. The Great Spirit, 
who is the father of us all, approves them. Let them pass 
through the ear into the heart. Carry them home to your people ; 
and as long as vou remember this visit to vour father of the 
eighteen fires, remember, these are his last and best words 
to you !" 

The beneficent policy which is here so simply, but beautifully 
recommended, has partially succeeded with many Indian tribes. 
In the Cherokee nation, however, it has produced the most tri- 
umphant results — results which establish the practicability of 
civilizing the Indians. It has been the good fortune of the 
Cherokees to have had born among them some great men. Of 
these, Charles Hicks, lately a chief, stood pre-eminent. Under 
his guiding counsels, and aided by the policy of the national 
government, they have outstripped the other tribes in the march 
of improvement. They seek to be a people, and to maintain, 
by law and good government, the security of persons and the 
rights of property. That they have made great advances in 
civilization, is generally understood ; but, in order to present an 
exact picture of their condition, the following account, extracted 
from a letter of David Brown, resident in the tribe, and pub- 
lished among the official documents of the government, is here 
inserted : — 

" Horses are plenty, and are used for servile purposes among 
them. Numerous flocks of sheep, goats, and swine, cover the 
valleys and hills. The natives carry on considerable trade with 
the adjoining states; and some of them export cotton, in boats, 
to New-Orleans. Apple and peach orchards are quite common ; 
and gardens are cultivated, and much attention paid to them. 
Butter and cheese are seen on Cherokee tables. There are 
many public roads in the nation, and houses of entertainment 
kept by the natives. Numerous and flourishing villages are seen 

18 



138 

in every section of the country. Cotton and woollen cloths arc 
manufactured here. Blankets, of various dimensions, manufac- 
tured by Cherokee hands, are very common. Almost every 
family in the nation grows cotton for its own consumption. In- 
dustry and commercial enterprise are extending themselves in 
every part. Nearly all the merchants in the nation are native 
Cherokees. Agricultural pursuits engage the chief attention of 
the people. Different branches in mechanics are pursued. 
The population is rapidly increasing. In the year 1819, the 
Cherokees, east of the Mississippi, were estimated at 10,000 
souls. In 1825, they amounted to 13,563 native citizens; be- 
sides 220 whites, and 1,277 slaves." 

They have also established a constitution, whose provisions 
are better calculated, as it is expressed in its preamble, " to es- 
tablish justice, insure tranquillity, promote the common welfare, 
and secure to ourselves and posterity the blessings of liberty," 
than many of the more elaborate contrivances of their European 
brethren. The government is representative in its form, and is 
divided into executive, legislative, and judicial departments. 
The trial by the jury is established, and the particular provisions 
of the constitution, while they are calculated to accustom the 
Cherokees to the principles of our system of jurisprudence, are 
peculiarly well adapted to the anomalous condition in which the 
/lation is placed. The whole is well suited to secure to the 
tribe the improvements already made, and to stimulate them to 
further advances in civilization. 

Another proof given by the people of their capacity of self- 
improvement is furnished in the Cherokee alphabet, invented 
by one of their native chieftains, named Guess. Like Cadmus, 
he has given to his nation the alphabet of their language. It is 
composed of eighty-six characters, so well adapted to the pecu- 
liar sounds of the Indian tongue, that Cherokees, who had des- 
paired of acquiring the requisite knowledge by means of the 
schools, are soon enabled to read and correspond with each other. 
This invention in one of the greatest achievements of aboriginal 
intellect. Like the European and the Asiatic, the American 
savage has now found a means of perpetuating the productions 



139 

of mind. A barrier is erected against the encroachments of 
oblivion. 

Henceforth his peculiar forms of expression, his mental com- 
binations, and the sublime suggestions of his imagination and 
feelings will be preserved. An empire of intellect is founded 
upon a new^ and stable foundation, — and when did such an 
empire experience a decline, till by regular gradations it had 
attained the climax of human grandeur ? 

A printing press established in the nation, issues a news- 
paper, periodically, imparting information and intelligence 
throughout the country. 

The religion adopted by the nation, and now universally pro- 
fessed by the whole Cherokee people, is that promulgated by 
Him who was sent on a divine mission to the Gentile as well 
as the Jew — to the savage as well as the civilized man — the 
religion of Christianity, which, wherever it reigns, whether in 
Europe, Asia, Africa, or America, elevates its professors above 
those of other religions. 

Such is the spectacle now presented by the Cherokee nation. 
It reflects honour on the past policy of the government, and 
aftbrds irrefragable proof of the sincerity of its intentions 
towards the aboriginals, and a conclusive answer to the charge 
of cruelty and grasping cupidity in its transactions with them. 
When the British Quarterly accuses our government of decep- 
tive attempts " to preserve appearances by fraudulent and com- 
pulsory purchases of land," and states to Christendom (as it 
lately did, No. 61.) that " it has always been the boast of Ame- 
rican TpoYicj, that the Indians shall be made to vanish before civili- 
zation, as the snow melts before the sunbeam," we can appeal to 
this tribe for a refutation of the charge. Here, we can say, 
exists a community of aborigines, enjoying the lights of Chris- 
tianity, and fast advancing, under the protection of the republic, 
to an equality with the white race in civilization. 

Here is the evidence on which we rely for a refutation of the 
calumny, and, so long as it exists, it will afford the proudest evi- 
dence of the beneficent spirit of the government, of an unstained 
national character, and of the power of civilization. 



140 

Whether this testimony is to remain in the archives of the 
country, among the title deeds and evidences of national cha- 
racter, which were handed over by the late administration to its 
successors, has now become a question to be finally settled. 
The measures of the administration, since the accession of Gen. 
Jackson, commencing with his talk to the Creeks of March 
23d, and the letter of the Secretary of War to the Cherokee 
delegation, of the 18th of April, 1829, indicate a departure from 
the ancient policy of the government. They are in a different 
strain from those previously presented ; but whether in a loftier, 
a nobler, or even in a fairer strain, is a question now to be ex- 
amined. The President, in his talk, tells the Creeks that they 
must remove, because "you and my white children are too near 
each other to live in harmony and peace." This is a short and 
emphatic way of solving the difficulty. It is, indeed, a " straight 
talk," and comes to the point with military directness. 

With the Cherokees, however, the administration is more ar- 
gumentative, and certain principles and statements are appealed 
to, in order to justify this departure from its ancient policy. It 
is placed on the ground that, in the Revolutionary war, the 
Cherokees were allies of Great Britain ; and that the treaty of 
Hopewell, by which they were received into the favour of the 
L'nited States, only allotted to them certain territory as hunting 
grounds ; that, upon the acquisition of independence, all the 
rights of Great Britain became vested in the original states of 
this Union, including North Carolina and Georgia ; that those 
states never relinquished the rights of sovereignty and jurisdic- 
tion over the soil to the Union, and consequently may now ex 
ercise those rights, notwithstanding any treaty made by the 
federal government : and that the guaranty given by the 
United States was not adverse to the sovereignty of Georgia, 
because the United States had not the power to give such gua- 
ranty. It would not be too strong to say, that these assumptions 
and statements are generally unfounded, and evince an entire 
want of the knowledge of our Indian relations; but as we seek 
to inform the public, so that its opinion may have its proper and 
legitimate effect — we shall present a concise statement of these 
relations, from official sources. 



141 

By the treaty of Hopewell, the boundary of the lands " allotted 
for their hunting grounds" was marked out. By the same 
treaty it was agreed, that if a citizen of the United States 
attempted to settle on those lands, he might be punished by the 
Indians according to their own laws; and by the twelfth article 
it was provided, that the Indians should have the right to send 
a deputy of their own choice, whenever they thought fit, to 
Congress. This treaty was made in the year 1785, under the 
old Confederation, when Congress had the power of regulating 
trade, and managing all affairs with Indians, " not members of 
any state." These tribes were clearly not members of any 
state, and, of course, the management of their afi'airs fell under 
the jurisdiction of Congress. Georgia, however, did not assent 
to this construction of the articles of confederation. Although, 
during the fury of the contest, and while dependent for exist- 
ence upon the arms and efforts of the Union, it had remained 
silent ; no sooner was peace obtained than it sought to appro- 
priate, for its separate benefit, the territory obtained by the 
common eftbrt of all ; and set up pretensions to interfere with 
the Indian tribes, to which Congress was compelled to oppose 
its high authority. The opinion that was entertained of the 
conduct of Georgia, in this respect, may be collected from the 
proceedings of Congress in the year 1787, particularly from a 
report dated August 3d, a resolution passed October 20th, and 
the instructions to the Commissioners for negotiating a treaty 
with the Southern Indians. 

In all these, the conduct of Georgia is condemned, and its 
pretensions pointedly rebuked. The Federal Constitution was 
finally adopted, and in that instrument provisions were inserted, 
with the view of obviating the previous difficulties. The treaty- 
making power was vested in the President and Senate, and the 
states were prohibited from entering into any treaty of any 
description ; and the limitation contained in the old articles of 
confederation of the power of Congress for regulating Indian 
affairs, viz., "provided that the legislative right of any state 
within its own limits, should not be infringed or violated," was 
omitted. 



142 

This change was designedly made, in order to prevent colli- 
sions between the state and national authorities, in relation to 
the Indians, like those which had taken place under the old con- 
stitution. The federal government was now invested with the 
exclusive power to regulate commerce with the Indians, and 
of making treaties with them ; and also of repelling their hostile 
encroaclmients. 

To this constitution Georgia became a party ; and thereby 
relinquished all right of interfering with Indian affairs. The 
general government now proceeded to establish friendly rela- 
tions with the Cherokees, who, whh the Creeks, had been 
driven into a war with the whites, by the conduct of Georgia. 

In 1791, a treaty was concluded at Holston, between the 
United States and the Cherokees, by which the boundary line 
was established, and the Cherokee claim to the land, east and 
south of the line, extinguished. 

The 7th article of that treaty is as follows : — 

" The United States solemnly guaranty to the Cherokee 
nation all their land not hereby ceded," 

It was further stipulated, that all citizens settling on the Che- 
rokee land, should forfeit the protection of the United States ; 
and that any citizen of the United States committing any 
offence within the Cherokee territory, should be punished as if 
the same had been committed " loithin the jurisdiction of the 
State or District to which he may belong, against a citizen 
thereof." 

Provisions were also made for the improvement of the con- 
dition of the tribe, and that they "may be led to a greater 
degree of civilization, and to become herdsmen and cultivators, 
instead of remaining in a state of hunters." 

In 1798, a further cession of their territory was made by the 
treaty of Tellico ; and the United States, in the Gth article, 
agreed to *' continue the guaranty of the remainder of their 
country for ever." 

Other treaties were subsequently made, down to the year 
1819, not altering the relations established by those treaties: 
but, on the contrary, by a treaty made in 1817, the old treaties 
were expressly confirmed. 



143 

These were the obligations which the United States had 
assumed previous to the agreement of 1802, with Georgia : — 
a solemn guaranty of the Cherokee lands for ever to that nation, 
and a promise to establish them as cultivators of the soil, and 
to promote their civilization. 

The President declares this guaranty to be no longer binding, 
and that the United States have not the power to interfere to 
prevent their expulsion. No longer binding ! And why ? The 
Cherokees have not released them from their obligation. They 
have committed no act of hostility, by which the treaties have 
been annulled. On the contrary, they have adhered to the 
United States through good report and through evil report ; 
and when their blood has been shed in battle, it was in the 
white man's cause. 

How then is our pledge redeemed ? The agreement between 
the United States and Georgia, of 1802, does not touch the case. 
This was a compact to which the Indians did not assent. It 
released the United States from no obligations to third parties. 
It only declared the boundary line between the public territory 
and that territory, which was thereafter to constitute the state 
of Georgia. Previous to that agreement, the western limits of 
that state had been the subject of dispute. Georgia claimed to 
extend its western boundary to the Mississippi : the United 
States claimed, as public territory, all west of the Ocmulgee 
river. According to the construction given by the United States 
to the charter of Georgia, its western boundary would have run 
through the present centre of that state ; and all between that 
line and the Mississippi, was territory to which both parties laid 
claim. After much discussion, these conflicting claims were 
settled by the agreement of 1802 — Georgia ceding to the United 
States "her right, title and claim to the jurisdiction and soil of 
the lands" west of her present boundary; and the United States 
ceding to Georgia their " claim, right, and title, to the jurisdic- 
tion or soil of any lands" east of that boundary. It must be 
borne in mind, that in no other instance where the claims of the 
United States and individual states to disputed territory were 
settled, was it thought necessary for the United States to cede 



144 

their claim to the territory reserved by the state as within its 
proper limits. The National Government accepted the cession, 
and the title of the state to the territory not ceded became 
complete. In the case of Georgia, however, it was deemed 
essential, in order to vest in the state a good title to a part of 
its present territory, comprehending the whole Cherokee coun- 
try now in dispute, for the United States to cede their right. 
This cession, pf course, comprehended no more than the United 
States could give, viz., a title encumbered with all their obliga- 
tions to the Indian tribes occupying the territory ceded ; and 
Georgia took it, subject to the guaranty of the United States 
to the Cherokee nation. The guaranty was prior to the agree- 
ment, and unless it be maintained that the United States and 
Georgia were competent to dispose of the vested rights of third 
parties, it must enter into the construction of that agreement. 
The cautious limitation of the obligation assumed by the United 
States to extinguish the Indian title, east of the boundary, 
" when it could be peaceably obtained upon reasonable terms," 
shows that this guaranty entered into the contemplation of both 
parties, and that they looked only to a voluntary cession. To 
this mode of extinguishing the Indian title, and the limitation 
of its sovereignty, which the prior obligations of the United 
States imposed, Georgia expressly assented, by an act of its 
legislature, declaring the articles of cession to be binding and 
conclusive on the state and its citizens, for ever. It now, how- 
ever, claims the right to remove the Cherokees, by extending 
its sovereignty over them. The citizens of Georgia have be- 
come impatient at their long and continued residence among 
them, and they are clamorous for their removal. Their cupidity 
has been excited, and their avarice inflamed, by the fair and 
promised land which they occupy, and they call aloud for its 
division among them by a lottery. The spacious territory which 
has been so lately ceded by the Creeks, has excited, rather than 
satisfied their desire ; 

" As if increase of appetite had grown, 
By what it fed on." 



145 

and they demand the Cherokee country, with its cultivated 
fields, its luxuriant gardens and orchards, and its flourishing 
villages, with the view of further corrupting the people of the 
state by another land lottery. This is the object at heart. This 
is the real motive of all this craving desire to remove the Indians. 
For years the state has been urging it on the General Govern- 
ment, in a tone alike discreditable to its humanity and patriot- 
ism. In order to effect it, one fraudulent treaty was made, 
at the instance and under the direction of the state government, 
which the late administration, sustained as it was, in that par- 
ticular, by public opinion, refused to carry into eflfect. Finding 
that they can neither persuade nor cajole the Cherokees into a 
cessation, they now attempt to intimidate them, by threatening 
to extend the jurisdiction of the state over them. 

In this at least there is nothing to shock the moral sense of 
mankind. The jurisdiction of Georgia! Surely there can be 
nothing here but an extension of the benefits of civilization, 
under the direction of a civilized legislature ! The inhabitants 
of Europe and America, who may feel solicitous for the fate of 
the Indians, can find here no substantial violation of guaranties, 
no disregard of national faith! It is but an extension of the 
social and judicial system of Georgia over the Cherokees ! The 
whole procedure is in the spirit of benevolence, and forms only 
a part of the national policy ! 

Such is the plausible appearance of the outward aspect of 
this proposition ; but in reality it is a decree of removal and 
expulsion. It is mild and pleasant, like the voice of Jacob ; but 
the hands are those of Esau, The jurisdiction of Georgia is 
one thing to the whites ; but another and an opposite thing to all 
of a different complexion. To the whites it speaks in the spirit 
of the common law, and secures to them freedom and equal 
privileges : to the Indian it speaks in the language of proscrip- 
tion, and divesting him of both civil and political rights, degrades 
him from the rank of a freeman, to the level of a disfranchised 
mulatto and negro. Without the privilege of voting, or of appear- 
ing in courts, either as party, witness, or juror, stripped entirely 
of his civil rights, and of his national character, he is placed at the 

19 



146 

mercy of the government of Georgia ; at the mercy of a govern- 
ment maintaining in the face of heaven and man, such principles 
as have been disclosed in the official papers of that unfortunate 
state on this subject. 

This would indeed be committere agnum lupo. 

It is not easy for a government to divest itself of all concern, 
for those whose interests are committed to its charge. The 
worst governments have always more or less of public motive 
to excuse their policy ; but when a government has two classes 
of subjects, the one to enrich, and the other to impoverish ; when 
one becomes the sole object of its care, and the other of its ra- 
pacity, it is impossible to imagine a system of more unmitiga- 
ted oppression. 

Unchecked by human feeling, and w^ith all its measures sanc- 
tioned by motives of expediency and care for the public weal, 
it deliberately proceeds to the perpetration of acts, from which 
individual wickedness would recoil with horror. Already have 
we seen under the sanction of these laws, the citizens of Georgia, 
invading the Cherokee territory as if it were an enemy's country, 
dragging its inhabitants before the state magistrates, and finally 
condemning them to prison as criminals, because they will not 
acknowledge the legality of these unconstitutional laws. 

Well may the General Government take it for granted, that 
the migration of the Cherokee nation is the only alternative. 
With the high and exalted ideas entertained by the Cherokees 
of their national character, they never can consent to be dis- 
franchised, and scattered like vagrants through the state, relying 
for protection only on the tender mercies of their persecutors. 
Better, at once, to oppose themselves to this systematic usurpa- 
tion ; and, calling on the United States for a compliance with 
their guaranty, and relying on the justice of their cause, to resist, 
to the last, all invasions of their country, and of their homes. 
They have every thing which can animate them to resist. On 
one side, exile and extirpation ; on the other, their continuance 
as a civilized people. If they remove into the wilderness, 
beyond the Mississippi, nothing human can preserve them from 
the fate of the other tribes, which have been overwhelmed by 



147 

the tide of civilization. Civilized man has passed them in his 
onward march to the Pacific ; and they have not yet proved 
victims to a movement, which, like the car of Juggernaut, has 
crushed others into the earth. They have escaped from most 
of the frontier collisions and conflicts, which are produced by 
the advance of the pioneers of civilization into the wilderness. 
They have obtained a vantage ground, from w hich they can see 
the promised land ; where, according to the words of their 
American Father, " they may cultivate the soil, and increase 
their little sparks to great fires," under the protecting arm of 
this Republic. Let them cling to it as to the ark of their salva- 
tion. If necessary, let them resist unto death. Better, a thou- 
sand times better, would be the quiet of the grave, than pro- 
tracting a miserable existence, rendered wretched by repeated 
and compulsory removals into the wilderness, before the ad- 
vancing footsteps of the more powerful people who occupy their 
country, and treat its ancient possessors w ith persecution and 
heartless contempt. Tantalized with hopes of civilization which 
they are forbidden to realize ; deprived of the hardy vigour of 
the savage state, and then called upon to relinquish the comforts 
of their improved condition; if driven beyond the Mississippi, 
they must share the fate of a race, which, like the autumnal 
leaves of their own forest, seem doomed to be scattered by every 
blast, but to whom no spring brings renovation. 

From this fate they have no hope of escaping, but through the 
justice and integrity of the federal government. By an implicit 
(it is to be hoped not a useless) reliance upon its good faith, they 
have stripped themselves of every other resource under heaven. 
They have appealed to the highest tribunal in the land, and by 
its solemn judgment these laws of Georgia are declared to be un- 
constitutional and void, as violating the laws and treaties of the 
United States. There is no longer any question as to the 
validity of their claims. The Supreme Court of the United 
States, created by the federal constitution as the tribunal of 
last resort, has decided in their favour, and they ask to be pro- 
tected in the land of their ancestors, from the violent invasion 
of Georgia, according to the plain import of the treaties. With 



148 

the solemn guaranty of the United States in their hands, they 
demand the interposition of the natioiial arm to save them from 
degradation, exile, and death. 

This appeal cannot be answered, by a reference to idle dis- 
tinctions between the powers of the state and federal govern- 
ments. The Indian atlairs are a common concern. The faith 
of the nation is plighted to them, and its character is pledged to 
the world, that the Indian tribes within our limits shall be treated 
with delicacy, kindness and humanity. The eye of Europe is 
upon us, and we cannot escape from this high responsibility. 
These legal distinctions and constitutional subtleties, repugnant 
to the common sense, and unpropitious to the common necessi- 
ties of mankind, will be regarded as mere inventions for the 
purpose of covering our participation in the plunder of the 
aborigines. The world will not believe — indeed it will not, that 
our constitution interposes insuperable obstacles to the preserva- 
tion of national faith. The whole distinction will be regarded 
as a mere pretence, infinitely more offensive to fair minds than 
the open avowal of injustice. Far better would it be for the 
President of the United States to give to the complaining 
Cherokees the short answer of the Day of Algiers to plundered 
merchants asking redress — "• Do you not know that my people 
are a band of robbers, and that I am their captain ?" Far better, 
and far more manly, would be this bold avowal, than a pretended 
distinction, which, under an afiected reverence for legal obser- 
vances and constitutional forms, abandons a helpless and de- 
pendent community to all the desolating consequences of arbi- 
trary power, stimulated to action by the most intense and craving 
cupidity. 

God forbid that the American people should sanction this dis- 
tinction. I do not fear that they will. They spring from a gene- 
rous stock of ancestors — from men who hazarded all, and suf- 
fered all, through a steadfast adherence to principle. The faulty 
part of their character does not savour of a spirit of selfish in- 
justice, or of grasping rapacity. It rather inclines them to the 
opposite extremes. Their principles of government and of state 
policy, are drawn from that great reservoir of jurisprudence 



149 

established by their English ancestors, and enriched and liberal- 
ized by the free discussions and masculine understandings of 
their own revolutionary fathers. These principles, their glory 
and their protection — at once an ornament and a safeguard — 
have sunk deep into the hearts of the people of the United 
States. They are endeared to them by the associations of child- 
hood and the experience of maturity. They are the great results 
of their past history—the fences and muniments of their present 
liberties — and the pledges of a long career of future glory and 
prosperity. They form the public sentiment of the country — a 
principle which, like gravitation, pervading and omnipotent, at 
once supports and controls their political system. 

As long as they remain unchanged and unchangeable, giving 
aliment and life to public opinion ; as long as our government 
shall continue to be the embodying of the sentiments of an en- 
lightened people — the concentration of the opinions of a free, 
educated, and Christian community, — the House of Represen- 
tatives, with its awful power of impeachment bringing these 
opinions into action, — the Senate, the guardian of state sove- 
reignty and of national faith — the body whose sanction gave ex- 
istence and value to these sacred guaranties, and the tribunal 
before which all violations of these pledges must be arraigned ; — 
as long as these branches of our government shall continue to 
be guided by the will of the nation, so long will our plighted 
faith guard the rights of the Cherokees, and of all other de- 
pendants upon our justice, from the spoliations of rapacity, and 
the iron hand of oppression. 



ADDRESS 



BEFORE THE 



NEVf-YORII HISTORICAL SOCIETY. 



1839. 



Looking back, with the eye of historical observation, a little 
more than two centuries, and the country we now inhabit was 
but one vast wilderness. The stormy Atlantic rolled its billows 
upon a desolate coast, where a dense forest, coming down to 
the ocean, and unbroken, except by the rivers which drained 
this great continent, bore witness to the complete triumph of 
uncultivated nature. This mighty wilderness of forest, prairie, 
and lake, extended from the Atlantic to the Pacific — its silence 
disturbed only by the water-fall, or the crash of some decaying 
monarch of the wood — affording shelter for the wild beast, or 
for the still wilder savage, who wandered through its mazes in 
search of food. 

At the eastern line of the horizon, we may discover a vessel 
making for this solitary coast. It approaches, and, after a care- 
ful selection of a haven, a company of hardy men land upon 
the verge of this wilderness. They are not mere adventurers 
in search of gold ; nor have they come to pay a hasty and tem- 
porary visit to this new world. The shores which they wist- 
fully gaze upon are to be their permanent homes. These con- 
stitute the only country they now have. The habits of civiliza- 
tion they have brought with them, and the rudiments of civil and 
social institutions, are engrafted upon their minds. All around 
them is wilderness, and cultivated man is thus brought into direct 



152 

association with uncultivated nature. Tiie forest is to be sub- 
dued, and social, religious and political institutions are to be 
established, to control and influence the people, who are des- 
tined to subject it to the uses of civilized man. 

This is a brief description of the condition of the founders 
of the American settlements, whether we look to the followers 
of the chivalric and adventurous Smith ; the hardy Hollanders, 
who established themselves here ; or the stern and enthusiastic 
Puritans who landed at Plymouth. 

In order to form accurate notions of their peculiar position in 
the history of mankind, we must glance beyond the ocean to the 
civilized world, with which they have for a time almost entirely 
disconnected themselves. 

Looking at the old continent, it is impossible not to perceive 
a marked diiference between the Northern and the other Eu- 
ropean governments. The former seem to have been founded 
upon one comprehensive and uniform principle, and conse- 
quently have been less affected by the movements of modern 
society. The governments simple and more absolute : education 
confined to the nobility : and villienage still in full existence in 
the North, — all attest how comparatively small has been the 
advance of those governments, and that they owe their origin 
to a common source, — the customs and institutions of the Scla- 
vonian or Northern tribes. 

The social institutions of middle and Southern Europe, on 
the contrary, have been founded on the ruins of a pre-existent 
state of civilization, and they are to be elucidated by reference 
to their history and long established usage. In this particular 
they resemble, as has been most accurately observed, the edi- 
fices of Italy and Greece at the present day. Their materials 
have not been quarried out of the living rock ; but collected 
from the scattered remains of the temples and dwellings of 
ancient days. While the sterner and harsher features of the 
political institutions of Northern Europe remind the observer 
of the primitive formations of their granite mountains. 

Hence, in examining into the theory of the governments of 
Southern Europe, we are at once carried back to the era of the 



153 

fall of the Imperial City ; for in the crumbling frame of the 
Roman Empire, and in the fusion or amalgamation of the inva- 
ding barbarians with its conquered inhabitants, we are to look 
for the elements of European civilization. 

The policy of the imperial government was, to render the 
provinces tributary and entirely dependent upon the capital. 
Her servants and favourites were rewarded by provincial ap- 
pointments, in much the same manner as England now provides 
for her decaying nobility, by giving to the younger scions of the 
aristocracy some office in the colonies. The rights of peace 
and war, of legislation, and of levying taxes, were taken from 
the provinces to be exercised at Rome, and nothing was left to 
them, but the powers of administering the laws of the emperor. 

The Imperial Code, afterwards so celebrated as the civil law, 
was extended over the whole empire, and was administered by 
prefects and judges appointed at Rome, and generally citizens 
of that city. 

The maxim, that subjects had nothing to do with the govern- 
ment, was predominant in all parts of the system. They had 
only to obey ; and the object of political institutions was not to 
protect the subject from the tyranny of the ruler, but to enforce 
justice, as between individual citizens, and to preserve order 
and tranquillity. For this, these laws were admirably adapted, 
but they provided no security for political rights. Regarding 
the emperor as the controlling mind, and requiring unqualified 
obedience from the subject, no provision was made for the im- 
provement and advancement of the mass of the community; 
and from the necessity which man is under of advancing or 
retrograding, the Roman Empire had thus early implanted the 
principle of degeneracy, and of ultimate destruction. 

This empire was broken up into various fragments, which, 
in the course of time, were united under different heads, and 
now form the existing kingdoms of Europe, by successive irrup- 
tions of the barbarous hordes from what historians call the 
northern hive of nations. From the earliest antiquity, this por- 
tion of the globe had periodically sent forth its swarms of 
hardy warriors, to invade the more favoured climes ; and we 

30 



154 

learn from the classic historians of Rome, as well as from those 
who, in a degenerate style, recorded the events of her declining 
years, that the invaders were accompanied by their wives and 
children, and that thev came with a determination to find a 
country or a grave. 

The first inquiry then is, what influence did the political 
institutions of the empire exert in establishing the existing con- 
stitutions of Europe ? and for a solution of that inquiry, we 
must ask, what was the political organization of the empire? 
It is hardly necessary to inform this audience, that this empire 
was composed by the successive conquest of cities. Rome 
itself was in the beginning merely a municipality ; and she ex- 
tended her sway over Italy and Greece, by overcoming rival 
cities, which after the conquest merely acknowledged the 
supremacy and authority of Rome, and were permitted to pre- 
serve tiieir municipal organization. The whole shore of the 
Mediterranean, from Byzantium to Carthage, was studded with 
cities, and France and Spain were divided into small districts 
of country, which were dependencies upon some large town 
or city. It was by the conquest of these that the Imperial City 
established her authority throughout Europe ; and when she 
sought to extend her empire over the thinly settled countries 
of Parthia, Scythia, and Germany, her political system proved 
unequal to accompany the march of her legions. 

As these dependent provinces preserved their municipal 
organization, their connection was easily dissolved, as soon as 
the military supremacy of the capital was at an end ; and 
during the fifth century, the ascendancy of the northern hordes 
being fully established, the western empire fell a victim to her 
barbarous invaders. 

The customs of the conquerors, like those of all warlike 
savages, were simple, and their laws aimed chiefly to secure 
military discipline, and an equitable distribution of plunder. 
They brought with them, however, two principles of paramount 
importance ; not only in giving them victory and power for the 
time being, but in impelling the communities with Vi^hich they 
were about to unite into a new channel of exertion. Hhe first 



155 

was tlie feeling of personal independence, which characterized 
the German and Vandahc tribes, and which was widely differ- 
ent fi'om the kindred sentiment among the Greeks and Romans, 
that led them to exult in their character as members of a poli- 
tical association, or citizens of a state. The other principle 
was the institution of military patronage, or the attachment of 
the followers to certain leaders, by means of which the parties 
gained the advantages of combined force, without assuming 
any general obligations to society. 

After achieving an easy conquest over the degenerate inhabi- 
tants of the empire, they proceeded to appropriate the country 
to their own use. This appropriation was accompanied with 
the violence and confusion ordinarily attendant upon a forcible 
conquest, and for many years all the component parts of society 
seemed to be resolved into chaotic disorder, and Europe was 
given up to the dominion of rapacity and force. At length 
something like system and order began to appear. The land 
was divided into districts, over each of which a chieftain was 
placed, called a count, to collect the revenue, and to lead the 
military contingent in war. Their followers were rewarded by 
smaller portions of land, which they held in propriety on con- 
ditionof serving in defence of their feudal lord. Several of these 
counties were placed under the supervision of a more powerful 
chieftain or duke. These in their turn owed allegiance to the 
king under whom the conquest had been achieved, and from 
whom their title to their possessions was supposed to be derived. 
The Romans, or original inhabitants, were in some cases re- 
duced to servitude ; in others they were permitted to farm lands 
of their conquerors, and, in some favoured instances, they pos- 
sessed them in propriety. 

They were, however, every where held in less estimation in 
the eye of the law than their warlike masters, and no provision 
was made for their advancement, or for their participation in 
the government. That was still of a military character, and 
its laws looked more to the reward of valour than to the pre- 
servation of civil or political rights. The military commander 
and his chief followers constituted a favoured class. For the 



156 

preservation of their privileges thej^ established a code, deno- 
minated the Feudal System, in which the two principles, to 
which 1 have referred, remarkably predominate. 

According to this system, which was a primary process in 
establishing the European governments, every thing assumed 
the relation of lord and vassal, and all looked to a common lord 
or sovereign. Even the municipalities, which had survived the 
shock of barbarian violence, and remained almost as the sole 
relics of the empire, were con)pelled to own some feudal lord. 
To the sovereign, however, — the common head, — all ostensibly 
submitted, as the source of authority, whether judicial, legislative, 
or executive. In the performance of these political duties he 
was assisted by his chief officers, as forming a kind of council, 
and their decrees, which at first were judicial proceedings, 
finally assumed the authority of laws, and served as the basis 
of European jurisprudence. 

In that age of violence, however, the authority of the sove- 
reign was not always implicitly respected. Each chieftain had 
a numerous following, and choosing for his residence some 
elevated spot, he constructed his castle, and held himself 
equally ready to aid his sovereign against foreign invaders, or 
to resist him, in case he encroached upon his own peculiar 
privileges. 

" Might makes right," was the maxim of the age, and the 
law of force could only be executed by the strongest. Hence 
the necessity of associating in the government the feudal barons, 
and the reason of their great and peculiar privileges. The 
nobility formed a j^eal body in the state, and had they been 
governed by one mind, the real power in the European govern- 
ments would have been vested in the aristocracy, and the mon- 
archs would have been merely the rwminal head of the state, 
without authority. The nobles had valour, skill, landed posses- 
sions, and warlike followers, attached to their lords from early 
associations and by common dangers. 

The monarch was, it is true, the supreme chieftain, had more 
extensive estates, and a more numerous band of retainers ; but 
these advantages would not have enabled him to withstand 
any extensive combination of the nobility. Their own divisions, 



157 

the aid of the church, and of the burgesses, or the third estate, 
and a fortunate combination of circumstances, were all neces- 
sary to give the ascendancy to the monarch, and to enable him 
to triumph over his refractory dependents. This was finally 
effected, after bloody and protracted contests, marked by many 
vicissitudes, and lasting through a series of generations. 

Thus in England, the crown was more than once endangered 
by the power of the great Earl of Northumberland ; and all 
admirers of the Enc-lish drama are familiar with the name of 
Nevil, Earl of Warwick — " the setter up and puller down of 
kings." 

So, too, in France, the long and dubious wars between the 
crown and the Dukes of Normandy and Burgundy, and the 
Counts of Flanders and Brittany, too well attest the power of 
these refractory nobility. 

To reduce these independent chieftains to the rank of sub- 
jects, the monarchs were obliged to call in the aid of the hur- 
gesses, or inhabitants of the cities ; and to ensure their zealous 
support, their interests were enlisted on the side of the crown, 
by granting to them a charter confirming their municipal privi- 
leges. The cities, as I have already remarked, preserved their 
municipal organization from the wreck of the empire, and the 
victorious barbarians, although enforcing their supremacy, and 
occasionally exacting tribute, chose for their own residence the 
country, as more congenial to their taste and habits. The bur- 
gesses, in time, consequently acquired the sentiment of inde- < 
pendence, which they found prevailing among the nobility, and 
fortifying their towns, occasionally evinced the same disposition 
to refer their rights to the arbitriment of force. Disputes con- 
stantly broke out between them and their feudal lords, and as 
one or the other party appealed to their common sovereign, a 
community of interest began to grow up between the kings and 
the cities. In the contest with his nobles the monarch, there- 
fore, resorted to the burgesses for aid, and as the crown ac- 
quired power, the third estate was also elevated in the scale of 
society, and the nobility proportionably depressed. In this con- 
flict between the monarchical and aristocratic interests origi- 
nated the popular or democratic interest. 



I 



158 

The church was also found on the side of the crown. In 
such lawless limes it was natural that the church, in its anxiety 
to repress licentiousness and violence, should lend its aid to 
strengthen the authority which was appointed to restrain the 
turbulent and disorderly. The Catholic clergy, too, found their 
temporal views better promoted by an alliance with the king. 
The church, therefore, imparted a spiritual sanction to the 
regal authority, and was repaid by being allowed to share in 
the temporalities of the crown. 

As these disorganized elements settled into something like 
system, certain modifications took place. The councils, which 
at first were composed entirely of the nobility, were enlarged 
by the admission of the higher orders of the clergy, and the 
delegates or the municipal officers of the more important towns. 
They went by various names, as the Parliament, in England ; 
the Stales General or Provincial, in France and Holland ; the 
Diet, in Poland and Germany ; and the Cortez, in the Penin- 
sula; and met, not periodically, but occasionally, when some 
special difficulty required a legislative remedy. 

The laws promulgated in these assemblies were construed 
and applied by officers appointed by the king; although the 
Courts Baron of England, and the many local tribunals in that 
country, and in the continental kingdoms, fully demonstrate, 
that the nobility still maintained an independence of the head 
of the state, altogether incompatible with the existence of any 
settled and regular system of jurisprudence. 

Under the influence of these causes, which were common to 
all the divisions of the Roman Empire, the political institutions 
of Europe were established ; and although they were modified 
bv the peculiar character of the diflferent nations, by their cus- 
toms and other causes, which there is not space to detail, the 
same general results were produced. A number of monarchies 
were erected on the ruins of the Roman Empire, in which the 
political power of the government was vested in the king ; but 
his authority was disputed both by the nobility and the priests, 
' and it was solely maintained by availing himself of the mutual 
jealousy of the various orders in the state. The basis was 



159 

feudal. The monarch was at the head of the government, as the 
source of honour and authority ; and tlie clergy striving to impart 
a spiritual sanction to his title.iin the belief that they thus strength- 
ened their claim to dispose of earthly crowns, as the vicegerents 
of the Deity ; the nobility, with great and undefined privileges, 
and substantial power to enforce them ; the cities acknowledging 
feudal dependence upon some neighbouring lord, but exercising 
many sovereign powers ; and the great mass of the agricultural 
population holding property and liberty entirely at the mercy of 
their superiors ; and even the burgesses claiming civil rights by 
virtue of some royal grant or charter. Ignorant of their own 
strength,without the means of general communication with each 
other, and brought up in habits of dependence and obedience, 
the lower classes remained in subjection to the higher orders of 
the state, without questioning their right of control. Even when 
some intolerable oppression drove them to rebellion, as in the 
insurrection of the peasantry, or the Jacquerie, of France ; of 
Jack Cade, in England ; and of Massaniello, at Naples ; it was 
rather a sudden ebullition of fury, than a systematic effort to 
improve their condition ; and temporary success only served to 
demonstrate their unfitness for self-government. The invariable 
result consequendy was, the restoration of the aristocracy, 
which, rude and uneducated as its members were, was better 
calculated to preserve the community from anarchy, than the 
serfs and peasants of the middle ages. 

The third estate by degrees, however, obtained power and 
influence ; and as civilization advanced, it began to acquire 
weight in the social system, and held itself ready to make its 
strength felt in the affairs of Europe. 

As a preliminary to the distinct and independent appearance 
of that power in the slate, it was essential that the power of 
the nobility should be so diminished, as to prevent their numbers 
and force from crippling the action of the popular principle. 
This was effected at about the same period, towards the end of 
the fifteenth century, by the rapid growth of the power of the 
crown in the several kingdoms of Europe, and the concentra- 



160 

tion of the authority of the state !n the hands of their respect- 
ive monarchs. Thus, in Germany, the house of Austria acquired 
the imperial diadem, and by rendering it, to all practical pur- 
poses, hereditary, caused monarchy to gain the ascendant in 
the empire. The crowns of Castile and Arragon were united 
by the marriage of Ferdinand and Isabel ; and their power 
enabled them to complete the subjugation of the Moors, and to 
unite Spain under one head. In England, the great baronial 
families were broken down by the wars between the rival fami- 
lies of York and Lancaster, and Henry the Seventh and his 
son became virtually despotic. In France, the standing body 
of troops, which Charles the Seventh was compelled to keep 
on foot to defend his kingdom against England, imparted new 
power to the crown, and enabled its possessor to pursue a 
steady policy in increasing its authority. This was done by his 
successor, Lewis Eleventh, and the opportune descent of Bur- 
gundy upon a female during his reign, enabled that sagacious 
and unscrupulous monarch to reduce the nobility to a state of 
abject dependence, without calling in the commons to his aid. 
France thus became a pure unmixed monarchy ; and the mon- 
archical principle predominated throughout Europe. Partial 
causes, however, operated in particular kingdoms, which im- 
parted peculiar features to their respective constitutions. Thus, 
in France, the chivalric feeling of the nobility, or what Montes- 
quieu calls the principle of a monarchy, the sense of honour 
among the aristocracy, prevented that class from being reduced 
to the level of the commonalty. 

They were deprived of the political power, which had been 
vested in their order,^as a body; but their ideas of personal 
distinction remained unchanged, and they preserved their pecu- 
liar privileges as individuals belonging to a superior class of 
citizens. While this then in some degree served to check the 
despotism of the king, it tended still more to curtail the rights 
of the people. 

In Spain, from an early period of its history, the authority of 
the nobility seemed to have been greater even than in France ; 
and the Cortez, which, in Castile, Arragon, and their dependent 



161 

kingdoms, seemed to have been coeval with their constitutions, 
were more frequently convoked, and exercised a more marked 
influence in their affairs, than the legislative assemblies of the 
other continental kingdoms. 

The representatives or municipal officers of the cities made 
their appearance in those bodies at an early period. The ex- 
istence of the Moors as a hostile nation, of diffei'ent religion and 
complexion, in the heart of the kingdom, compelled the kings 
to respect the privileges of the nobility, and to yield to the 
claims of the cities, which, as affording a refuge to the Span- 
iards against their Moorish enemies, were both numerous and 
powerful. The Spanish constitution would probably have ex- 
hibited a monarch with comparatively limited prerogatives, had 
not the crowns of Naples, Sicily, the Low Countries, Germany 
and Spain, been united on the head of Charles Fifth, and that 
at a period when the treasures of the new world rendered the 
crown, to a great extent, independent of the legislature for its 
supplies. 

This empire, with the exception of his Austrian possessions, 
was entrusted to his son, Philip the Second, bigotted, cold, and 
despotic in his disposition, and of unrelenting determination. 
With these qualities, and aided by all the powers of the church 
and the newly established inquisition, he entered upon a cru- 
sade against the liberties of his subjects. In Spain he was suc- 
cessful. The people were naturally indolent, and the new 
world opened a field for all adventurers, who might have resisted 
the usurpations of the monarch, had they not been allured to 
the Dorados of America in search of honour and wealth. 
Hence, after a feeble contest, the whole power of the state was 
vested in the crown ; and the government, from being a limited 
and occasionally an elective monarchy, controlled by a Cortez, 
in which the three estates met, and where they exercised 
supreme power, even over the sovereign himself, became an 
absolute monarchy, restrained only by the chivalric feeling and 
haughty independence of the nobility. 

In the Netherlands, on the contrary, his arbitrary designs 
were frustrated. Here was a people not merely accustomed, 

21 



162 

but compelled, by the nature of the country, to severe and un- 
remitting labour. The feudal nobility did not find in the Low- 
Countries the same motive to an early appropriation of a ter- 
ritory, which at best was but partially secured from the ocean, 
and which required constant exertion to preserve it for the use 
of man. Here, therefore, the arts and manufactures were early 
established, and the Netherlands were occupied with an indus- 
trious but hardy population of artisans and mariners. Hence 
the common people were not so degraded, when compared with 
the nobility ; and the Flemish and Dutch cities were early noted 
for a pertinacious defence of their privileges against tlie en- 
croachments of their rulers. 

The doctrines of the Reformation, too, at this time, were 
diffusing themselves among the common people, and contributed 
to more rapidly develope the popular principle, that had ap- 
peared in the Netherlands. These doctrines, which recognised 
the right of private judgment, in questioning tiie infallibility of 
the church, prostrated one of the firmest supporters of the 
throne. Reason was called in to the aid of the popular cause. 
Having been taught to judge for itself in matters of conscience, 
it was no great stride to inquire into the sufficiency of reasons 
of state. A being with an immortal soul, accountable for the 
deeds done in the body, was entitled to question the propriety 
of the commands of his political ruler. Blind obedience could 
no longer be exacted from one, who rejected the doctrine of 
absolution, and who held himself responsible to the King of 
Kings. He was obligated to square his conduct with a law 
from above, and resistance to the unlawful commands of unjust 
rulers was inculcated as a maxim of religion. These principles 
soon brought the inhabitants of the Low Countries into collision 
with the government of Philip, and after a bloody war, that 
continued through more than one generation of men ; Spain 
was compelled to relinquish her claims, and the freedom of 
Holland was established upon the lasting foundation of the 
Reformed Church. A government was formed, with a member 
of the Orange family at its head. The conduct of the foreign 
relations was entrusted iu a representative body, called the 



1G3 

States General ; but the real power was vested in the provhicial 
states. 

The government of this new power, which was called the Con- 
federation of the Seven Provinces, was feeble and inefficient, and 
incapable of preserving its independence, except through the 
jealousy of the surrounding kingdoms. Still it promoted the 
happiness of the community, and presented the first instance of 
a government instituted for the benefit of the people. 

Law, as administered by judicial tribunals, was substituted 
for the will of arbitrary rulers, and private rights were secured 
by an adherence to certain definite principles. The want of 
intelligence in the mass of the community prevented the lower 
classes from being the depository of political power, which was 
entrusted to the syndics and burgomasters ; but these were 
directly connected with the labouring classes, with whom they 
were in the habit of daily intercourse, and were in fact their 
natural and proper representatives. 

This was the first instance of the predominancy of the popu- 
lar principle among what may be regarded as the European 
family of kingdoms ; for the Swiss Confederacy was too isolated, 
and exercised too little influence with its neighbours, to be 
taken into consideration. The establishment of the liberties 
of the people of England took place at a later period, and was 
indebted to the same cause, — the influence of the Protestant 
religion, for its success. 

The Magna-Charta, so often called the palladium of British 
freedom, was merely intended to guard the barons against the 
encroachments of the crown. Certain provisions in that in- 
strument are indeed general in their expressions, and would 
seem to have been intended for the protection of all classes ; 
but in that rude age the villeins or rustics were of too little 
consideration to be made the motive for limiting a phrase of 
general import : and the only article expressly for their benefit, 
by which their agricultural implements were exempted from 
distress for royal fines, was really for the benefit of their lords. 

It is scarcely necessary to extract from the voluminous re- 
cords of English history, proofs of this statement. From the 



164 

earliest periods down to the reign of the First Charles, English 
monarchs evinced an entire disregard of the boasted privileges 
of Englishmen, 

Before that time the Star Chamber, acting as a court of ex- 
traordinary jurisdiction, had enforced the pretensions of the 
higher classes by such penalties and laws as it thought proper 
to adopt. In his reign the Presbyterians, holding similar opin- 
ions to those for whose sake our Puritan ancestors had just 
before left their native shores, came into collision with the head 
of the English Church ; and a refusal to pay taxes imposed 
solely by the crown was a consequence of the quarrel. A ma- 
jority of the judges, when the question was brought before 
them by Hampden, sustained the pretensions of the crown ; but 
the decision was subjected to severe criticism, and the king 
being compelled by the Scotch rebellion to convene a Parlia- 
ment, the House of Commons overruled the judgment of the 
court ; extorted from the crown a surrender of its claims to im- 
pose taxes without their consent ; and thus rendered it necessary 
to resort for the periodical supplies to Parliament, where the 
popular branch was held to have the sole power over money 
bills. This branch had now a recognised existence in the con- 
stitution, and was clothed with power to curb the ambition of 
the court. It had, however, in its composition a strong aristo- 
cratic tendency, and, by means of the borough system, it soon 
became an engine of the aristocracy, who obtained a complete 
control over the House of Commons. Hence there was not so 
much gained for the mass of the people by the constitution of 
Parliament, as by the checks provided against the exercise of 
arbitrary power in the bill of rights, and in the habeas corpus 
act, which have been justly regarded as the bulwark of British 
freedom. The whole political power was in practice entrusted 
to the aristocracy, and the liberties of the rest of the commu- 
nity were secured only as dependent upon them. 

Parliament was, according to the phraseology of the common 
law, omnipotent, and was competent to modify not only the 
laws, but even the constitution of the kingdom ; and this body 
was entirely controlled by the nobility and landed aristocracy. 



165 

The only security of British freedom, therefore, was in pub- 
lic opinion ; and the history of that country at various times, 
and especially during the Scotch and Irish rebellions, and the 
French Revolution, has shown how insufficient a safeguard, that 
can furnish against an aristocracy constitutionally invested with 
the sovereign powers of the state. 

Among the northern kingdoms of Europe, as Russia, Sweden, 
Denmark, and the Germanic powers, the popular principle did 
not so distinctly appear. 

They did not form a part of the old Roman Empire, and 
consequently were not influenced by some of the elements 
which so materially modified the institutions established by 
their migrating countrymen in middle and southern Europe. 

The fusion of their social elements is not even now accom- 
plished ; and at the era of which I am speaking, the action of pub- 
lic opinion and of the popular principle, had made no impression 
upon the original character of the governments of the Northern 
powers. Their legislative councils wei'e composed of the more 
powerful nobility, who occasionally, but not at stated periods, 
aided the monarchs in making laws for the realm ; and they 
were rather representatives of the military contingent, or force 
of the state, than of its civil interests. The legislation partook 
of the rude character of the age, and was a mixture of the 
Sclavonian and feudal customs, somewhat modified by the prin- 
ciples of the civil law, which were fast extending themselves 
over all Continental Europe, and giving a marked character to 
its jurisprudence. The legislation and the government, how- 
ever, resembled those of the more southern kingdoms, in those 
peculiar features which characterize the political institutions of 
Europe, and serve to contrast them with those of our own 
country. They looked to the preservation of the privileges of 
the favoured classes as a primary object, and upon the general 
welfare and popular rights as of too slight importance to be 
considered in establishing the constitution of a state. 

These were considered as merely dependent upon the will 
of the crown, or of the aristocracy, and might be extended or 
resumed at the pleasure of the sovereign. 



160 

In this view of the governments of Europe, as they existed 
before the American Revolution, I have not specially adverted 
to what are, with great looseness, denominated the Italian 
Republics. These governments partook of the aristocratic 
character of the political institutions around them ; but they 
were without a monarchical head, and thus were rendered more 
liable to civil feuds and domestic dissensions. 

Belonging to the central portion of the old empire, and longer 
accustomed to municipal government, the Italian cities pre- 
served more of their ancient institutions and a greater degree 
of independence than the cities of the other provinces. These 
municipal governments were administered by the more influen- 
tial citizens, and although sometimes elective, there was no- 
where anything like an instructed or enlightened popular mind 
acting upon the government. The mass of the community was 
too ignorant to act either in establishing the government, or in 
supervising its administration, except by impulse. The feudal 
aristocracy, who in Italy did not preserve the same degree of 
solitary independence as in the adjoining kingdoms, took up their 
abode in the cities. As citizens, however, they could not brook 
an equality of rights ; and by their power, their pride, and their 
ambition, they kept the towns in a constant turmoil, and using 
the lower orders as their instruments) by inflaming their pas- 
sions against their opponents, they drove their antagonists, as 
either party alternately prevailed, from their native cities. The 
exiles, despairing of being restored to their homes, would im- 
plore the intervention of some foreign power, and Italy thus 
became a prey to her more powerful neighbours, and was for 
centuries the battle ground of Europe. The political constitu- 
tions of that classic land were too unsettled to be used as illus- 
trations of any position, except of the danger of small commu- 
nities existing under independent governments. 

In the other European kingdoms, the monarchical principle 
had now acquired a decided ascendancy, except in Holland, 
where the government was, to a certain extent, popular. 

It was now, however, destined to come in collision with a prin- 
ciple, which had before shown occasional symptoms of hostility; 



167 

but which now began to assume a consistent shape, and to aim at 
a definite and recognised supremacy in the state. I refer to the 
democratic principle — the principle which looks to the welfare 
and happiness of the mass of society, as the only legitimate end 
of government. 

Men had become tired of being pack horses for the privileged 
orders. The public mind — the general intellect, had been ex- 
cited and quickened by the master spirits that appeared in 
Europe during the 16th and 17th centuries. 

Vasques de Gama had doubled the Cape of Good Hope, and 
opened the way to the East Indies. 

Columbus had boldly penetrated the waste of western waters, 
and informed the stirring spirits of the age, that beyond that 
until then impassable gulph, there was a world whose fertility 
and wealth far outshone all that poets had ever imagined of 
" Ormus and of Ind." 

Galileo, by the invention of the telescope, had subjected the 
heavenly bodies to the use of man : had given a new and bound- 
less field to his aspiring mind, not as to the shepherds of Chaldee 
and Arabia, merely as a theme of wonder and contemplation ; 
but as the objects of practical science ; and by his mighty magic, 
had brought down the stars to serve as land-marks to the darino- 
mariner in the midst of the pathless ocean. 

Martin Luther and his coadjutors had boldly assailed the in- 
fallibility of the Pope. They had roused subjects to think and 
rulers to act in behalf of the rights of conscience, and thus led 
the way in the insurrection of the European mind against the 
intellectual tyranny of the church. 

Francis Bacon, than whose no greater name stands on the 
annals of learning, had commenced a new era in science, by estab - 
lishing it upon the sure foundation ofobservation and experience : 
and finally the invention of printing, that mightiest engine of 
human improvement, by the general diffusion of knowledoe, and 
the multiplication of books, had secured the productions of 
human intellect from the corroding tooth of time, effectually 
prevented any retrograding in the march of mind ; and erected 
an eternal bulwark against the return of barbarism and ignorance. 



168 

Such was the condition of the European world, when, impelled 
by various motives, but all closely connected with the excited 
spirit of the age, our ancestors left the shores oT Christendom to 
found the colonies of North America. 

Whether we look to the eastern, the middle, or the southern 
states, we find the first settlers all animated by a thorough de- 
termination to shake off the shackles of antiquated prejudices, 
and to establish their social institutions upon the new principle 
which had begun to make its appearance in some of the govern- 
ments of Europe. 

In the southern colonies, and in this state, the colonists were 
commercial adventurers, and their laws were, of course, tho- 
roughly imbued with those principles of equality and justice, 
which are essential to the prosperity of a trading community. 

The colony of Maryland was composed of Catholics, who 
had been taught in the school of persecution the duty of charity 
and toleration ; and the pacific followers of Penn, who spread 
themselves through Pennsylvania and New-Jersey, had learned 
from the precepts of their founder, to call no man master, but to 
look upon all men as their brethren. 

Among the puritans of New-England, however, are to be 
found the qualities and principles that exercised a controlling- 
influence in forming the character and shaping the destiny of 
the American people. 

The extraordinary sect that founded the colonies of Plymouth 
and Massachusetts, were not onlv Protestants in religion, but 
they were dissenters from the political faith of blind obedience, 
which was then professed by the English nation. In their 
struggles against the religious supremacy of the crown, they 
were often tempted to question its temporal authority. When 
they were dragged before the council and thence to prison, it 
was not surprising that they should, in their hearts, throw oft' 
allegiance to a power which tortured the body, in order to 
enslave the mind. 

They were, in truth, ripe for the resistance which, in the next 
generation, was offered by the stern Presbyterians to the usur- 
pations of the crown, and would then have led the way to a 



169 

Commonwealth, had the nation been prepared to second theif 
efforts. 

Their religious opinions, too, peculiarly qualified them for the 
task to which they had devoted themselves. 

Their system of faith was one of self-denial, humiliation and 
prayer. It rendered every passion of the human heart sub- 
servient to a vehement desire of knowing and executing the will 
of Providence. All the temporal motives, ambition, avarice, 
self-love, all were swallowed up in this absorbing feeling : and 
yielding to its influence, they embarked with their families upon 
the tempestuous ocean, and turned their backs upon their native 
country, with a fixed determination never to return. 

Upon landing on the wild and barren shore, which their 
bark first touched, how striking and original was the situation 
in which they were placed. They had not left their own country 
like the colonists of the ancient republics, with the countenance 
and under the protection of the parent country ; nor had they 
come to America like the commercial adventurers whom modern 
Europe has so often sent to the East and West India settlements. 
They had deliberately and permanently adopted another country. 
There was no prior governments, upon the ruins of which their 
own political institutions were to be erected. The wilderness 
was before them, extending from the Atlantic to the Pacific ; and 
here was intelligent, educated, and civilized man, about to found 
a nation, whose social institutions were to be established upon 
the basis of freedom and equality. 

The colonists had been taught by bitter personal experience, 
that the political institutions they had fled from, were not fitted 
to promote the happiness of the mass of the community. They 
had no inducement to copy the frame of their government from 
those, which at home, were overgrown with the abuses of anti- 
quity. Privileged orders had no charms for them. They were 
all equal in rank, in sufferings, and in sacrifices. They were 
not compelled from their relations with those around them, to 
erect a feudal system, or a magnificent hierarchy in the Ame- 
rican wilderness. All this was indissolubly connected in their 
minds with imprisonment, persecution and exile. 

22 



170 

But they were placed here in a new country, where a virgin 
soil offered its treasures to their industry, with all the arts of 
civilization and the lights of science, possessing all the experi- 
ence which the failures in governments for four thousand years 
could teach, and free from the motives and interests that have 
imparted the principle of corruption and decay to the social 
institutions of other countries. In the vigour of youth, and 
unshackled by prejudice, they commenced their course from the 
goal which the nations of Europe had only partially attained 
after centuries of exertion. 

The popular principle — the will of the majority — was recog- 
nized as the fundamental principle of the government of the 
new colony, and it was inculcated, as a primary duty of govern- 
ment, to cause general instruction to be diffused among the 
members of the rising generation, in order that the enlightened 
will of an educated community might control the policy of the 
government. * * * 

In all the North American settlements, whether founded for 
commercial purposes, or to serve as an asylum to those who 
had left the old world for conscience sake, the colonists were 
all equal in rank. Subordination there was ; for without it no 
enterprise can be successfully prosecuted ; but it was voluntary 
obedience, or such as resulted from the laws adopted by the 
common consent of the new community. It was not a subor- 
dination of classes, established by law or custom, (often so 
much more powerful than law,) which conferred upon a par- 
ticular order of men peculiar privileges, because their ancestors 
served under Clovis, or came in with William the Conqueror. 
The colonists were all equal in rank, and of the same class of 
society. How unlike the condition of Europe in any stage of 
its progress, from the barbarous institutions of feudalism to the 
civilized governments of the nineteenth centuiy. There were 
no cities nor municipalities, with rights and privileges derived 
from a pre-existent state of society. There were no feudal 
tenures to be granted, nor any feudal duties to be performed, 
for the purpose of sustaining their social institutions against 
the hostility of the old inhabitants of a country occupied by 
conquest. There was no expensive ecclesiastical establish- 



171 

ment, whose support constituted a perpetual burden upon the 
agricultural portion of the community. There was no hereditary 
monarch, with all the costly paraphernalia of a court, nor any 
privileged orders, to be maintained by exertions " wrung from 
the hard hands of peasants" by any indirection. The soil was 
not burdened with tithes nor with taxes, nor fettered nor tied 
up by entails, long trusts and intricate family settlements. It 
was all wild as the Deity had created it, and civilized man had 
now come to take possession of this rich inheritance, and to 
extend over it the social institutions of an educated and Chris- 
tian community, upon the broad and natural basis of freedom 
and equality. This, however, was not to be done by military 
conquest. The wilderness was to be subdued, but it was to be 
subdued by labour. The treasure which was hidden in its 
bosom was to be brought to light only by industry, and the ne- 
cessity of their condition imposed upon them laborious and 
simple habits as indispensable to their existence. 

Situated as the colonists were, idlers could not be tolerated, 
and he stood first among them whose qualities rendered him 
most essential to their prosperity. The form of government 
was therefore necessarily elective, and at first purely demo- 
cratic, the whole community consulting and deciding upon the 
course proper to be adopted in any emergency. 

In the commercial settlements there was a royal governor, 
and sometimes these governors manifested an arbitrary dispo- 
sition ; but it is so difficult to sustain power unreasonably exer- 
cised in a new settlement, and the settlers so often evinced 
their determination to make the governors conform to the gene- 
ral will, that even in the royal and proprietary colonies, they 
were constantly obliged to consult public feeling ; and at the 
first establishment of the settlements, its members formed rather 
a voluntary association of adventurers, than a community sub- 
ject to regular government. 

In the eastern colonies they were still more popular. The 
governors there were elected by the colonists themselves, and 
in the colony established at Plymouth, (the earliest, and in all 
important particulars the model of the New-England settle- 
ments,)^the colonists, upon landing, entered into a written social 



172 

compact, (the first the world ever saw,) by which it was agreed, 
that the will of the majority should be the law of the colony. 
They then chose a governor from among themselves, and with- 
out the sanction of a royal charter, they laid the foundation of 
their popular institutions on that wild New-England shore, with 
the canopy of heaven for a covering, and four thousand miles 
of ocean flowing between them and the abode of civilized man. 
If we recur to the manner in which this colony extended itself, 
we shall see the reason why the democratic principles, which 
predominated in the establishment of its government, lost none 
of their strength and influence as the settlements became more 
numerous. 

As the domestic relations of all the colonies were peaceful 
among themselves, whenever any number of colonists intended 
to found a new settlement, they chose some suitable spot, and 
cutting down the forest, commenced erecting their humble 
dwellings, with their own hands, for the protection of their 
families. Having established the few simple laws that were 
necessary for the maintenance of good order, some of the oldest 
and ablest of their number were appointed by common consent 
to enforce them. These were called the selectmen of the settle- 
ment, a title well known in the eastern states, and were annu- 
ally elected, as they are at the present day, and constituted the 
municipal authorities of all the New-England towns. 

To preserve them against the savage tribes, who were then 
formidable, both from their numbers and hostile disposition, 
every person able to bear arms was required to perform mili- 
tary duty ; and their officers were chosen in the same primitive 
mode — the soldiers electing those who were to command them. 

Their church organization was upon the same popular foun- 
dation, each society choosing its own pastor by a majority of 
the votes of the congregation, and responsible to the rest of the 
community only through the medium of public opinion. In this 
manner the whole system of government, political, military and 
ecclesiastical, was rendered popular and familiar. The people 
were accustomed from their infancy to self-government, and the 
system of representation and of political accountability, was 



173 

thus universally and familiarly practised from the first settle- 
ment of the country. Each distinct town was to many pur- 
poses an independent community, and all its members were 
thus early indoctrinated in the principles of popular government. 
There was another institution peculiar to the eastern settle- 
ments, of paramount importance in preserving such a govern- 
ment from the fate to which all other governments, founded 
upon a popular basis, have been hurried ; and to its early esta- 
blishment may be fairly attributed much of the success of our 
political institutions. I allude to the public establishment of com- 
mon schools. In those colonies the principle was early adopted 
and constantly maintained, that it is the duty of the government 
to provide for the inst)uction of the children of all its citizens. 
Scarcely was the settlement established, and relieved from the 
necessity of struggling for existence, when the Legislature of 
the Plymouth Colony ordered, that a grammar school should be 
established in each township in the government, and that twelve 
pounds in each town should be annually raised by a tax, for its 
maintenance. Those sagacious and self-denying men were 
resolved, that the lights of science and knowledge, which they 
had brought from their ancient homes, should not be extin- 
guished in the new^ world, and they determined, that what is 
elsewhere left to charity or to chance should here be secured 
by law. Knowing that their government was based upon the 
public will, they sought to preserve it by informing the public 
mind, and inspiring the salutary and conservative principle of 
virtue and knowledge at an early age. We ought not to omit, 
as a circumstance which also had a marked influence upon the 
character of our political institutions, that the chief property 
of the whole community consisted of real estate, and that their 
situation required a division of the lands among its members. 
The right of primogeniture was soon practically abolished, and 
estates were divided among the children of the intestate. The 
consequence of this was, a great equality of wealth, and the 
soil of the country was divided into small freeholds, all occu- 
pied by persons equal in rank, and competent by early instruc- 
tion, and eligible by law, to participate in its government. In 



174 

this manner the political instituticms of this country were 
formed ; and although the British governme.it soon extended 
her sovereignty over the colonies, it was merely nominal, 
except so far as its legislation affected their commercial rela- 
tions. Whenever it was extended to other subjects, it excited 
discontent, and it was easy to foresee, that the colonists would 
never be satisfied with any thing less than popular governments 
established on this side of the Atlantic. Indeed, it may be 
sal'ely asserted, that the Puritans, who settled in the Eastern 
Provinces, never contemplated any connection with England, 
implying submission on their part, and that they always re- 
garded any interference with them as usurpation. We find 
Massachusetts, for instance, in 1G35, shortly after its first settle- 
ment, upon its being reported that a general government for 
the colonies had been projected by the crown, resolving, that if 
such a governor were sent, the colony ought not to accept him, 
but to defend its lawful possessions. And not long afterwards 
that same colony took the lead in forming a confederacy, under 
the title of the United Colonies of New-England, with the view 
of resisting the encroachments of the Dutch settlers of New- 
Amsterdam. About the same time she began to coin money ; 
formed leagues with foreign powers, without the consent of 
England ; disputed the right of the British to fish upon her 
shores ; permitted no appeals from the colonial courts, and re- 
fused to exercise jurisdiction in the name of the Commonwealth 
of England. Connecticut followed closely in her footsteps, 
and a spirit of independence was thus early implanted, which 
ultimately proved a great safeguard to the privileges of the 
colonists. 

Immediately upon the restoration of Charles the Second, 
measures were taken to introduce a new system of government 
into the colonies, in order to curb their aspirations for inde- 
pendence. Commissioners were sent over to examine into 
the state of affairs, and the General Court of Massachusetts, 
with characteristic spirit, prevented the reading of the commis- 
sion by the sound of the trumpet. They were finally compelled 
to return without accomplishing the object of their mission ; 



175 

and the English Court then undertook to forfeit the charters of 
the colonies, with the view of rendering them entirely depend- 
ent upon the crown. They refused to appear to the summons 
of the British courts, and although the charters were declared 
forfeited, the sullen acquiescence of the colonists plainly indi- 
cated the brooding of a storm. This was not long in breaking 
out. Upon the forfeiture of the charters. Sir Edmund Andross 
was appointed Governor General of the New-England Colonies, 
and immediately upon his arrival he entered heartily upon the 
new policy of the court. A restraint was placed upon the 
press ; town meetings were prohibited, except once a year ; 
taxes were imposed upon all property and all importations. He 
threatened to shut up the congregational meeting houses : and 
finally, disregarding the long occupancy, and the Indian deeds 
produced by the settlers, which he declared " to be no better 
than the scratch of a bears paw," he undertook to act upon the 
feudal principle, that the lands of the colonists were held of the 
crown, dnd to exact a fine to be paid to the governor for a con- 
firmation of their title. This tyranny, it may be easily supposed, 
was not patiently borne. The colonists refused to take out 
new patents, or to levy taxes ; and the magistrates of Ipswich 
resolved, that they would not rate the inhabitants for taxes 
until they had an assembly. Neither was their resistance con- 
fined to mere resolves'. In the spring of 1689, a report reached 
this country that the Prince of Orange had landed in England. 
The colonists did not wait to see what reception he met with, 
but on the 18th of April, a period particularly unfortunate to 
the supremacy of the mother kingdom, the country people 
crowded into Boston, and Andross was driven into the fort, and 
finally obliged to surrender with his satellites to the mercy of 
those whom he had excited to tumult by his avarice and 
tyranny. No unworthy violence or cruelty disgraced this sud- 
den rising of the people, but, like men guided by principle and 
not by passion, they contented themselves with depriving their 
oppressors of power, and sending them home as prisoners. 

The inhabitants of New- York followed the example set them 
in Massachusetts, and the Lieutenant Governor, Nicholson, who 



176 

held the province for James the Second, was driven from his 
government, and the people, headed by Jacob Leisler, took pos- 
session of the forts and archives for William and Mary. About 
the same time the inhabitants of South Carolina became in- 
volved in difficulties with their governors, and assumed the 
same power of sending them home. In 1689 they claimed the 
powers of government, and deposed James Colleton, the go- 
vernor, and finally banished him from the province. His succes- 
sor, one Sothel, met with even a worse fate. The Colonial 
Assembly undertook to bring him to trial for his official miscon- 
duct, and upon his conviction deprived him of his government 
and sent him to England. Virginia, also, in the early part of 
her existence, sent home her governor for his misconduct.' 

The triumph of the Presbyterian party in England affords 
another proof of the independent spirit of the people of this 
province. From a disinclination to the religious principles of 
the rulers of the Commonwealth, they resisted the squadron 
sent to enforce the authority of the mother country, and finally 
submitted upon terms which reflect great credit upon the lofty 
principles by which her inhabitants were actuated. They 
stipulated for a free trade; for a General Assembly; for free- 
dom from all taxation not authorized by the Assembly, and that 
no forts should be erected or garrisoned without the consent of 
the colonists. 

In Virginia another attempt was made by the settlers to 
control Governor Berkeley in the exercise of his authority, in 
the year 1676. This attempt was denominated Bacon's Rebel- 
lion, although the inhabitants had abundant cause, in the mis- 
management of their public affairs and in the operation of the 
acts of navigation, for the revolt. The public mind was also 
much excited by claims under certain grants of lands already 
occupied by the colonists. 

Claims of this sort upon the lands occupied by the inhabitants 
were a fruitful source of discontent. A rebellion in North 
Carolina was produced the year after Bacon's revolt, by a re- 
port, that the proprietors intended to augment the quit rents. 
Maryland, also, had her civil war, and Pennsylvania, with all 



177 

her peaceful habits, was often obhged to protest against a vie-- 
lation of her privileges, and on one memorable occasion re- 
solved, in opposition to the arrangements of the British govern- 
ment upon the new modelling of the colonial governments by- 
William and Mary, that the lav^^s of the province, which were 
in force and practice before the arrival of the present governor, 
are still in force. 

These several acts of insubordination and continual difficul- 
ties, all show the insecure tenure of royal authority over the 
North American Colonies. In truth they always evinced great 
repugnance to any interference with their local affairs. It was 
not the intention of the emigrants to be controlled by a govern- 
ment established on the other side of the Atlantic. They, had 
fled from that government, and they had provided for their own 
legislation in America. It is worthy of remark, that the inhabi- 
tants of every colony, except Maryland, had settled the forms 
of their own government previous to the British Revolution ; 
and the Assembly of Maryland, immediately after its settle- 
ment, refused by a vote of thirty-seven to fourteen, to receive 
the system of laws prepared by the proprietor for the province. 

From every circumstance connected with the settlement and 
early history of these colonies, we are obliged to conclude, that 
the inhabitants were determined to govern themselves, and not 
receive their laws from the legislature of another kingdom, four 
thousand miles distant. They maintained, that the laws of Eng- 
land were bounded by the four seas, and did not reach America. 

The General Court of Massachusetts made this answer to a 
charge against the colony, of having disobeyed the navigation 
acts. On the other hand, the mother country, as soon as the 
colonies were permanently established, in the true spirit of com- 
mercial monopoly, resolved to confine their trade to Britisb 
channels, and to limit their market to England. The celebrated 
navigation acts, adopted directly after the Restoration, had for 
their chief object the monopoly of the colonial trade. 

In this relation of the provinces to the mother country may 
be distinctly traced the causes of the Revolution. It w-as im- 
possible in the nature of things, that communities with such 



178 

m 

opposing interests and claims, established upon such different 
principles, and so severed by distance and sentiment, should 
long continue to acknowledge a common authority. The voice 
of nature had decreed the independence of the colonies, long 
before the Continental Congress resolved to vindicate that in- 
dependence by arms. 

The claim of England was to keep the colonies in a state of 
tutelage, to engross their commerce, to monopolize the profits 
of their labour, and so to shackle them by legislative restrictions, 
as to prevent their inhabitants from making the best use of their 
natural advantages. The claim of the colonists was to be really 
independent of Great Britain. They were indeed willing to 
acknowledge the supremacy of the crown, but merely as a title 
of respect. They would not consent to be restricted in the 
enjoyment of the privileges conferred by their location, to bene- 
fit a people to whom they owed nothing but the banishment of 
their fathers. We accordingly find these parties constantly 
striving; England to enforce her claim to absolute sway; and 
the provinces to emancipate themselves from the shackles im- 
posed upon their trade and upon their local regulations. 

After the termination of the domestic troubles of Great Bri- 
tain, and the government felt itself firmly established at home, 
a more systematic project was entertained to render the colo- 
nies dependent. The New-England charters, which had been 
illegally forfeited under the Stuarts, were not restored after the 
English Revolution ; but new charters were given, and the go- 
vernors, except of Connecticut and Rhode Island, instead of 
being elected by the people as formerly, were appointed by the 
kino-. The New-England Provinces being thus annexed to the 
crown, the next step was to change the proprietary into royal 
provinces. The ministers therefore began to negotiate for the 
surrender of the charters. They found the proprietors less 
unwilling to surrender, on account of the refractory conduct 
of the colonists. The proprietors of New- Jersey were 
unable to control the inhabitants of that province, and in 
1702, their agent made a public surrender, in behalf of the 
proprietors, to Queen Anne, who was then on the throne. The 



179 

provinces of Carolina were purchased in 1728, for £22,500, from 
the proprietors. In South Carohna, the settlers had previously 
abolished the proprietary government, on account of its being 
subversive of the interests of the colony. In 1752, the pro- 
prietors of Georgia followed the example of the other proprie- 
tors, and surrendered their charter to the crown. By this sur- 
render all the provinces, except Pennsylvania and Maryland, 
became subject to royal government. An agreement had been 
also made for the purchase of Pennsylvania, but the proprietor 
was prevented by an attack of apoplexy from executing the 
surrender, and the propriety of the province remained in the 
Penn family until after the Revolution. 

The greatest portion of the provinces, however, were re- 
annexed to the crown, and a systematic plan was adopted to 
make the colonists feel their dependence, and to compel them 
to supply their w^ants from the British workshops. 

It is unnecessary to relate in detail all the acts of accumu- 
lated tyranny by which they were driven to arms. Their 
liberties were not merely invaded. They were destroyed, as far 
as legislative enactments could destroy. 

The colonists were rendered liable to be dragged to England 
for trial. Their ports were shut, and thousands thrown out of em- 
ployment. They were prohibited from fishing, with the expec- 
tation of starving them into submission. Their legislatures 
were disfranchised ; their charters, under which they had lived 
for generations, and which they had been taught ta reverence, 
were declared void ; and troops were quartered upon them ; as 
if the descendants of men, who had braved all and relinquished 
all, rather than submit to oppression, were to be dragooned 
into slavery. 

While this system for the government of the colonies was 
preparing in England, and when the inhabitants were gazing 
with the most earnest attention upon the proceedings of the 
representative assembly of Great Britain relative to this attempt 
to enslave their fellow citizens ; their understandings were in- 
sulted and their feelings exasperated by the contempt with 
which their remonstrances were rejected, and the contumely 



180 

and reproach that was thrown upon their character. They 
were represented as mean spirited hinds, that would scatter 
hke sheep before the discipHned troops of England. Their 
habits, their religion, their origin, w^ere all made the subject of 
ridicule ; and the British Parliament, when debating the great 
question of freedom or slavery, a question upon which the in- 
tegrity of the empire depended, was entertained with anecdotes 
of American cowardice ; as if men, who were almost in a state 
of rebellion, were to be brought to better feelings by imputa- 
tions upon their courage. While the high spirited and ardent 
were thus taunted and excited to violence, the deliberate and 
sober minded were stimulated to resistance by the conviction 
of the deadly hostility which governed the conduct of the 
ministry. The propriety of letting loose the savage upon the 
defenceless families of the colonists, and of arming the negroes, 
and visiting upon the southern provinces the horrors of a ser- 
vile war, was seriously advocated by the leaders of the majority, 
and every ilmerican felt, that the only refuge of the colonies 
was in arms. 

Their ancestors had fled from persecution, and now it had 
overtaken them here. They knew not the right of England thus 
to afflict them. Their lands were their own, purchased from 
the occupants, and changed by their industry from a howling 
wilderness into smiling gardens, orchards and fields. They had 
been defended against the savages and the French by their own 
valour. A father, a brother or a son, had vindicated their title 
to the country at the expense of his life, and it was dear to them, 
because it enclosed the remains of their gallant relatives. They 
owed nothing to England ; and when they viewed the despotic 
system she was preparing for them, their own and their fathers' 
wronss rose to their recollection, and warmed them to resistance. 
They felt them as one man ; and when Patrick Henry lifted up 
his spirit-stirring voice in the Virginia Congress, and declared, 
that " after all we must fight," he merely gave utterance to the 
thought that burned in every American heart. It was the 
general sentiment of the country, and it only required a fitting 
occasion to manifest itself. 



181 

It must be remembered, that England had assumed the power 
of appointing the colonial governors, so that at this period, all 
the governors were in the interest of the crown ; and they had 
the power of proroguing or dissolving the colonial assemblies. 
In order to prevent the expression of public feeling, this power 
was exercised, and the colonists were compelled, for the purpose 
of organizing opposition to the ministerial measures, to form 
new political institutions, whose resolutions were carried into 
effect by public sentiment. The leading whigs of the day were 
chosen to represent the town or district in a provincial conven- 
tion or congress, where the measures of local opposition were 
concerted, and where delegates were chosen to represent the 
colony in a Continental Congress, to whose wisdom was confided 
the management of the general cause. As their first efforts 
were directed to induce the British government to retrace its 
steps, these congresses were at first in a great measure infor- 
mal and their measures consisted chiefly of resolves. Among 
those resolves, however, was one to put the colonies in a state 
of defence; and this was caried into effect by the voluntary 
efforts of active patriots. At length the negotiation was brought 
to an end. The first blow was struck at Lexington, and the 
people in the neighbouring districts rose in mass to attack the 
regular troops, and then crowded round Boston to compel them 
to evacuate the town. 

So great was the public enthusiasm, that large companies of 
volunteers were sent home, because there was no accommo- 
dation for them in the camp. 

In this crisis was seen the excellence of the New-England 
mode of municipal organization, and how admirably it was 
suited to sustain a popular movement against an oppressive 
government. The camp at Cambridge was supplied by con- 
tributions furnished from the towns in the vicinity. The 
soldier often was assured by a vote of the town, that his family 
should be taken care of in his absence. Instances were not 
unfrequent, where small freeholders parted with the last 
measure of corn from their granaries to supply provision for 
the camp, and hire service for the ranks. Nobler records of 



182 

patriotism exist nowhere. Tlie voice of the advocates of inde- 
pendence in the Continental Congress found its full echo in the 
little councils of the interior towns, and had that body been dis- 
persed, the hydra heads of rebellion would have elevated them- 
selves in every little town and municipality throughout the coun- 
try. Hence it was, that without courts of justice, without tax 
gatherers, without revenue officers, or indeed without any of the 
ordinary departments of an established government, the Con- 
tinental Congress found it so easy to carry its resolutions into 
effect. In the eastern states, where the war broke out, the 
municipal organization of the towns supplied the place of all 
other government ; and the committees of safety in the middle 
and southern states, took upon themselves the performance of 
similar duties, until the new state governments had acquired 
some stability. Hence, too, it was, that the colonists found it 
practicable to establish new social institutions, when the royal 
governors and judges, by taking refuge in the British Camp, left 
them without any executive or judicial authorities. The people 
were accustomed to act directly in the management of public 
affairs ; and when the Continental Congress, as preliminary to 
declaring the independence of the colonies, recommended to 
them to form new civil governments, it found them competent 
to carry the resolve into effect. It is important to observe here, 
and more especially, as throwing light upon a question much 
agitated among us, that in forming the political institutions of 
this republic, there was a reciprocal action of the people upon 
the body representing them, and of that body upon its consti- 
tuents. Again, there was a reciprocal action of the national or 
central government in forming the state governments, and of 
the latter in limiting and defining the powers of the former. 
For instance, it was upon the recommendation of the Continen- 
tal Congress, that the state governments were formed. On the 
10th of May, 1776, that body, after mature deliberation, came to 
a determination to " recommend to the respective assemblies 
and conventions of the United Colonies, where no government 
sufficient to the exigencies of their affairs hath been hitherto 
established, to adopt such government as shall, in the opinion of 



183 

the representations of the people, best conduce to the happiness 
and safety of their constituents in particular, and America in 
general." 

This resolution was intended as a preliminary to the declara- 
tion of independence, which it was then determined to issue, as 
soon as the proper arrangements could be made. On the 11th 
of June, accordingly, a committee was chosen to prepare the 
declaration, and another committee to prepare a plan of con- 
federation between the colonies. Before the first resolution 
was executed, and whilst the people of the several colonies, in 
compliance with the recommendation, were forming their state 
constitutions, the Continental Congress, acting in behalf of the 
whole countrv*, issued the celebrated declaration, by which the 
Independence of the United States of America as one nation, 
was asserted in the face of Earth and Heaven, and the lives and 
fortunes and sacred honour of the members of that Congress 
pledged for its maintenance. By this instrument and the sub- 
sequent proceedings thereon, the American people declared 
themselves to be an independent nation, then at war with Great 
Britain : but as such, the whole were responsible to all the 
world, for the acts of the citizens of each and every of the 
colonies. They were free .and independent, not as isolated 
states, but as the United States of America : and as such only, 
could they be regarded by mankind. 

As between themselves, they were bound together by their 
acts and their declarations : although the terms and conditions 
of their union were not properly defined. They comprehended, 
however, all that was necessary to prosecute the war to a suc- 
cessful result. To this they had pledged themselves : and 
however congress might have been disposed to conciliate and 
persuade the several states, instead of resorting to coercive 
measures, no doubt can be entertained, that a refusal to comply 
with its requisitions upon any of the states for the public service, 
was a violation of faith, and that a withdrawal from the con- 
federacy by one of its members, would have been a good cause 
of war, and have justified the invasion and conquest of that state 
by the rest of the Union. The force of circumstances had formed 



184 

them into a nation, one and indivisible, and instituted a general 
government, long before the state constitutions or the articles 
of confederation were framed. As such they were regarded 
by other civilized nations ; and in that character, anterior to 
the adoption of any federal constitution or articles of confedera- 
tion, they had entered into a treaty of commerce and an of- 
fensive and defensive alliance with France : and had under- 
taken, in conjunction with that kingdom, important enterprizes, 
which presupposed the existence of a national government, and 
that that government possessed certain extensive powers over 
the people of the United States. With Great Britain they 
were in a state of war, striving to expel her troops from the 
continent, and to appropriate for themselves as much of it as 
they could gain by force. As to the other European powers, 
they were but one people, and known either as the United 
States of America, or as the insurgent colonies of Great 
Britain. Among themselves they were communities formerly 
distinct for all the purposes of local legislation : though subject 
in some matters, to the legislation of the mother country and 
the royal authority : but now united by common wrongs and 
common apprehensions, in one cause, and obliged to provide 
new political institutions to meet the exigencies of their novel 
situation. This subject early engaged the attention of the actors 
in the Revolution ; and the novel spectacle was presented, of a 
people contending for freedom and independence, with a power 
whose fleets and armies threatened their extermination, and 
occupied with arms in their hands, in laying the foundations and 
erecting the superstructure of their political institutions. Short- 
ly after the declaration of independence, on the 12th of July 
the articles of confederation were reported to congress, and 
that body, acting in behalf of the whole country, and the people 
in the several colonies, proceeded simultaneously to institute the 
political system under which this new republic was to exist as 
an independent community, united for some purposes, and 
separate and distinct for others. The state governments being 
more simple in their nature, and not involving the adjustment 
of so many conflicting interests, were more readily agreed upon 



I&5 

and earlier established ; but the intention of forming a national 
government was agitated at the same moment, though owing to 
the contest about the public lands, the articles of confederation 
were not ratified until after all the state governments were in 
full operation. It therefore may be safely asserted, that the 
American people never entertained the idea of existing in inde- 
pendent and separate sovereignties. As the United States, they 
had declared their independence; and as an united people alone 
could they maintain it. They meant to be one and indivisible, 
and as such they put in requisition the best talents of the coun- 
try, to form for them a political system, which should provide 
for the administration of local interests by local governments, 
and for the advancement of the general interests by a national 
government. Instead, therefore, of regarding the general govern- 
ment as formed by concessions on the part of the state govern- 
ments, it is to be considered as equally the establishment of the 
people ; who, for the sake of convenience, after framing its con- 
stitution in a general congress, expressed their assent to its 
provisions through their local assemblies, and apportioned to 
both the local and general governments, their political powers 
by the constitutions provided to guide those to whose hands the 
administration of the governments was confided. 

All the political institutions of the country, whether national 
or local, were called into being at the same time by the fiat of 
the people ; and to that source of power and not to the state 
sovereignties, must be referred all those reserved sovereign rights 
which are not conferred upon the federal or state governments 
by their respective constituents. The old articles of confede- 
ration, which first served as a constitution for the national go- 
vernment, being devised under the pressure of the revolution, 
were not found adequate to the end ; and the moment that 
the country was relieved from the enemy, the confederacy 
seemed about dissolving, from the want of a more vigorous cen- 
tral government. The people again took the subject into con- 
sideration, and devised a remedy. Notwithstanding the jealousy 
of the state governments, and the hostility of those charged 
with their administration, a general convention was formed at 

24 



186 

Annapolis of distinguished men, representing the several states, 
and in that body the federal constitution was framed, as com- 
prehending the powers necessary and proper to be entrusted 
to the general government. 

In that constitution, as well as in those established for the 
different states, the peculiar principles which characterize the 
political institutions of this country are distinctly recognised 
and steadily kept in view. The first of these, — that the people 
are the source of all political power, appears from the preamble 
of the constitution, as also does the second, which is not less 
important, — that the object of the government is the general 
welfare, and that not limited to the passing moment, but refer- 
ring to posterity, as well as to the present generation. The 
solemn language of this most important part of the instrument, 
which serves as a key to its whole meaning, is, " to promote the 
general welfare, and secure the blessings of liberty to ourselves 
and our posterity, we, the people of the United States, do or- 
dain and establish this constitution." 

The authority of the people, and the legitimate object of all 
government, are here both clearly and emphatically expressed. 
The mode in which the federal constitution proposes to accom- 
plish this object, leads me to the consideration of another prin- 
ciple of our institutions, which, although not so peculiarly our 
own, inasmuch as all popular governments have been obliged 
to adopt it, still it has been nowhere more clearly recognised, 
and nowhere, let me add, have greater efforts been made to 
induce a departure from it. I allude to the principle of repre- 
sentation, connected with the doctrines of periodical accounta- 
bility to the elective body. 

As it is impossible for a great nation to transact its political 
business in the primary assemblies, it is absolutely necessary 
for it to act through the medium of representatives from the 
various districts, assembled at one place, in one or more bodies ; 
and to prevent the sudden impulses to which the mass of the 
people is peculiarly liable, from rendering the public policy 
as unstable as the popular breath, it is provided in the constitu- 
tions of all popular governments, that the representative should 
be chosen for a limited term. 



187 

During that term he acts for his constituents, not as their 
attorney or agent, but as their representative ; and when he is 
chosen under a constitution, he acts as their representative, 
according to that constitution. The powers conferred by that 
instrument upon the office held by him, are to be exercised by 
him for that hmited term ; and if those powers necessarily pre- 
suppose judgment, deliberation and free agency in the repre- 
sentative, they are vested in him to be exercised only under the 
responsibility of accountability to the elective body at the ex- 
piration of the term. This principle so essential to the proper 
administration of all popular representative governments, is 
nowhere more fully recognised than in the federal constitution. 

" All legislative powers herein granted," it declares, " shall be 
vested in a Congress of the United States, which shall consist 
of a Senate and House of Representatives ;" and in other sec- 
tions it provides, that the members of these bodies shall be 
chosen for two years in the house and for six years in the senate. 

This congress is not an assembly of diplomatic agents, but 
a legislative body, in which are vested all the legislative powers 
of the federal government, in the same manner as the executive 
power is vested in the president, elected for four years, and as 
the judicial power is vested in the Supreme Court, whose mem- 
bers hold their seats during good behaviour. 

The whole nation is represented in congress, and in that body 
the whole legislative power is vested, to be exercised for the 
general, and not for local interests. Respect for the opinions 
of a man's constituents indeed is due, and the greatest attention 
and care for their interests, and more especially as connected 
with the general welfare ; but the only obedience due from a 
representative is to the constitution and the laws, and to those 
general principles upon whose observance the prosperity of the 
nation essentially depends. 

Another principle of our institutions is religious toleration ; 
and it was a fortunate circumstance, that the difficulties of our 
situation, and the necessity of union during the Revolution, com- 
pelled the founders of our government to take a step in advance 
of the public mind of Christendom, and to recognise the inhe- 



188 

rent right of every man to worship God according to the dic- 
tates of his own conscience. They early foresaw the impos- 
sibihty of uniting the Puritan of New-England, the Episcopa- 
lian of Virginia, the Catholic of Maryland, the Hugenot of 
Carolina, and the Quaker of Pennsylvania, in opposition to the 
arbitrary designs of England, except upon the broad ground of 
religious freedom ; and sacrificing the pride of opinion to the 
love of country, they adopted the glorious principle of tolera- 
tion, and made it the corner-stone of the American Union. 

Such are the principles of our social institutions, and notwith- 
standing many inconveniences resulting from the adoption of 
the democratic principles in some states more rapidly and to a 
greater degree than the state of public education would at the 
moment have warranted, still their successful operation have 
more than equalled the expectations of their most sanguine 
advocates. The great increase of our population; the augmen- 
tation of individual and national wealth; the astonishing 
advance of the country in the manufacturing and mechanical 
arts ; the rapid extension of our navigation and commerce to 
every quarter of the globe, and of our towns and settlements 
in the interior, until they even now are found upon the shores of 
Huron and at the foot of the Rocky Mountains ; this wonderful 
growth of a country which the eloquent and philosophic Burke, 
at a moment when some, who are now lingering among us, 
were preparing to vindicate her rights, described as "that little 
speck, scarce visible in the mass of national interest," — all 
these things bear witness to the great and unexpected success 
of our social institutions, and of their peculiar fitness to deve- 
lope the resources and promote the prosperity of a community. 
It is also to be remarked, that while other countries have been 
agitated by civil commotions, this republic has remained 
tranquil. 

The governments of Europe have nearly all undergone a 
revolution since our own was established. Kingdoms have 
given place to republics, and these in their turn have been fol- 
lowed by empires. The fever engendered by revolutionary 



189 

France has occasioned convulsions in the European body poli- 
tic, which have shaken her social institutions to their founda- 
tions ; and we have seen the children of a humble advocate of 
Corsica, seating themselves upon the thrones from 'Ahich the 
ancient dynasties have been expelled, and these again driven 
from their places by a reaction in public sentiment. 

The magnificent structure of Imperial France, erected by 
the genius of Napoleon, with all its supporting buttresses of de- 
pendent principalities and kingdoms, fell under the accumulated 
disasters of the Russian campaign ; and the Bourbon dynasty, 
whose restoration cost Europe twenty years of war, and en- 
tailed upon England an irredeemable debt, was ejected from 
France in a paroxysm of rage and disgust, and the book of 
change and revolution again opened for the instruction and im- 
provement of Europe. How is it, then, that whilst all other 
governments have been subject to such violent and sudden 
revolutions, our own has remained tranquil and unmoved ? The 
explanation of this problem is to be found in the popular cha- 
racter of our institutions. To render a government stable, it 
is necessary that its foundation should be broad and wide ; that 
it should be so constructed as to give to the mass an interest in 
its preservation ; that those who desire its continuance should 
be stronger than those who desire its overthrow. Stronger, 
not merely in numbers, which are not always decisive of the 
greater force ; but in education, wealth, courage, and talents, 
which are all elements of power, and in the most critical and 
final contests often bear off the victory from the greater 
number. 

Hitherto the political institutions have been so administered 
as to satisfy the mass of the community, and although party 
disputes have ran high, and, in some instances, as during the 
embargo, the war, and in the late movements in Georgia and 
in South Carolina, they seemed to threaten the integrity of the 
Union, some mode has been always found to avert the crisis 
and to prevent matters from coming to a violent extremity. 

We must not, however, forget, that it has contributed no 
little to the stability of our political institutions, that while they 



190 

were maturing ; the country was not subject to those disturbing 
forces and influences from without, which have retarded the 
growth of free institutions in other countries. We had no 
powerful neighbours to determine at a diplomatic congress, as 
in the cases of Belgium and Greece, what form of government 
was, in their judgment, most suitable for the infant nation. We 
were not disturbed by the intrigues of adjoining courts ; nor 
annoyed by the interference of the rival factions of adjacent 
kingdoms, all striving to force their particular theories upon 
our notice. The ocean, which interposed so effectual a barrier 
against the military superiority of England ; also preserved our 
institutions from the taint which too close a contact with 
foreign nations would surely have communicated. The moral 
influence which Europe exercises over the the social institutions 
of all civilized countries, seemed to be purified in passing over 
the broad Atlantic ; and our ancestors were enabled to preserve 
the primitive popular basis in its original strength, and to carry 
it out through every department of the government. 

But while the influence of Europe upon the character of the 
government of the United States has been scarcely felt : such 
has not been the case with that government in its influence 
upon the public opinion of Europe. 

The popular principle which had survived in the old Roman 
municipalities, and which, after lying torpid during the dark 
age of barbarian and feudal violence, was called into action 
by the monarchs of Europe as a check upon the nobility, had 
been for ages slowly gathering strength, and was now nearly 
ready to demand a share in the government, and a reformation 
of ancient abuses. 

The success of the newly emancipated colonies of England 
in establishing representative governments, gave a new impulse 
to this feeling ; and when France, with a view of obtaining a 
reform in the finances, and of restraining the corruption of the 
court, shortly after the American Revolution, assembled (for the 
first time since 1614,) her legislature or states general, she found 
herself unable to restrain the popular feeling, which hurried 
the nation forward to a revolution. 



191 

It forms no part of my design to follow the revolutionists in 
their career of fury while demolishing the political institutions 
of ancient France ; nor to relate the mode in which Napoleon 
constructed a new social system upon their ruins. It suffices 
to state, that when the imperial dynasty was for ever overthrown, 
the allied powers found the feudal institutions of France had 
been entirely destroyed, and the enthusiastic reception of Na- 
polean upon his return from Elba, by the French nation, afforded 
a striking proof of the danger of attempting to re-establish 
them. The Bourbons consequently were compelled to insti- 
tute a legislature of two chambers, and the popular branch 
elected by an elective body, consisting of about 100,000 of the 
large proprietors and wealthy capitalists. This body, however, 
was decidedly liberal — showing that the nation itself had been 
rendered liberal in its political character by the revolutionary 
process it had gone through. 

Indeed, the change in the law of inheritance, by which the 
principles of feudal succession and the right of primogeniture 
w^ere abolished, has alone practically revolutionized France. 
It is impossible that aristocratic institutions should be perma- 
nently established, where the laws of succession, co-operating 
with the laws of nature, are constantly dividing and subdividing 
large estates. Hence we have found the popular principle, 
which was strong enough in 1815 to coerce the Bourbons, even 
when backed by the allied troops, to give a charter to France, 
so powerful in 1830 as to drive that dynasty from the throne, 
and to establish the government, not as emanating from a royal 
grant, but from the will of the nation. 

Nor is it in France alone that the principle, so peculiarly our 
own, has made such striking progress. 

In various parts of Germany, great modifications of their 
political institutions had been made even prior to the fall of 
Napoleon, indicative of the great revolution that is taking place 
in modern society. 

In Prussia, for instance, military promotion was thrown open 
to all classes in 1807, and the next year three edicts were 
issued, by which all ecclesiastical property was appropriated to 



192 

the uses of the state ; the exemption from taxes, formerly en- 
joyed by the nobility, was abolished ; all the monopolies in trade 
were also abolished, and every citizen permitted to exercise 
his industry in any mode he might think proper. 

In 1811, a still greater step was taken in throwing off the 
customs of feudalism. In the Rhenish Provinces of Prussia 
personal servitude had long before been abolished by France, 
and that year an edict was issued, emancipating all the villeins 
or serfs in the rest of the kingdom, and giving to them a portion 
of the lands held by them at will, upon their surrendering the 
remainder to the lords. 

The effect of the changes in the political condition of the 
Prussians was manifested, when the nation was called upon to 
co-operate in expelling the French army from Germany. The 
Prussians rose almost en masse, and their enthusiasm in the 
cause, and their activity against their invaders, showed that 
they felt that it was for their country, and not merely for their 
king, that they were contending. Upon the close of the war 
a constitution was promised to them, in which provision was to 
be made for the representation of the people ; and although that 
promise has not been performed, and their king has since 
making it joined the allied despots, to repress the popular 
movements in Europe ; still it is easy to perceive that the nation 
is prepared for freedom, and that a war of opinion would soon 
place Prussia among the free governments of Europe. The 
promise, which was made when the German Confederation was 
established, viz : "In all the confederate states a representative 
constitution shall have place," — a promise which demonstrates 
the great progress of the popular principle, and its influence in 
modern society, will not be lost sight of. Kings may find it 
convenient io forget, but their subjects will remember, and they 
will recur to it again and again, until their just demands shall be 
granted. In several of the smaller German states, the sovereigns 
have already complied with it, and have reformed the political 
constitutions of their kingdoms. 

In Bavaria, Wirtemberg, and in the dominions of the Grand 
Duke of Baden, legislatures, in which the people are repre- 



193 

sented, were established shortly after the peace of Vienna, in 
1818, and since the Revolution of Paris similar modifications 
have been made in the constitutions of Brunswick, Hesse 
Cassel and Hanover. 

In Holland and Belgium representative chambers are insti- 
tuted, and the kingdoms of Spain and Portugal are at this very- 
moment in the stage of revolutionary transition. Among all 
these modifications in government, however, there is none that 
is likely to exercise a greater influence upon the destinies of 
Europe, than the late reform in the British Parliament. 

England, from her position, her wealth, her moral force, and 
the intelligence and courage of her people, occupies a command- 
ing station among the nations of Europe. No change can 
take place in her councils, no revolution in her government, 
without affecting the political character of the age, and causing 
other governments to watch its consequences with apprehen- 
sion and anxiety. This reform, as it is called, which has lately 
taken place, is in truth a revolution. 

Hitherto the House of Commons has been a body, not so 
much representing the people, as the aristocracy of England. 
By means of borough nomination, the peers and wealthy tory 
families had obtained a complete control over the majority of 
the Commons, which, for more than a century, has been little 
else than a tribunal to register the decrees of the ministry or 
of the leading peers, whose combinations determine who shall 
be the ministers. 

All this is now at an end. 

By the late reform fifty-six boroughs, sending two members 
each, have been disfranchised, and thirty boroughs reduced to 
one member each. These representatives have been given to 
the counties and large towns, such as Manchester and Birming- 
ham, which before were not represented. 

By this alteration alone the character of the house will be 
completely changed ; but the alteration, extending the right of 
suff'rage, has given to the popular principle, not only additional 
representatives, but has also conferred upon it greater power 
over the whole house. The House of Commons holding the 

25 



194 

purse, and, by necessary consequence, the sword of the nation, 
will be henceforth in practice, as well as in theory, the repre- 
sentative of the people of England. 

The popular principles must henceforth pr dominate in that 
government. Withoutthat constitutional addition to its strength, 
which has been given to it by the Reform Bill in the House of 
Commons, it has in fact since the death of Mr. Canning, con- 
trolled and overawed the government itself. 

To it the Duke of Wellington conceded Catholic emancipa- 
tion, in spite of his aristocratic pride and his tory prejudices. 
The king, when he dissolved Parliament, in order to obtain the 
sentiments of his people upon the question of reform, bowed 
before its power ; and the whole tory party, when they shrunk 
from the responsibility of forming a ministry in opposition to 
the public will, and suffered the Grey administration to resume 
the reigns of government, virtually admitted its complete 
supremacy. 

With the new power this principle has obtained, its future 
control must be unquestioned, and hereafter the other powers 
of the government will subsist entirely at its mercy. 

Pausing here, and looking back to the condition of the world 
when this country was first settled, and how great has been the 
progress of civil liberty. 

At that moment all Europe was monarchical, and the rights 
of the subject were entirely dependent upon the will of his 
sovereign. Holland alone assumed to have shaken off the re- 
straints of despotism, and this only as it regarded national inde- 
pendence, without any material advance in the principles of 
civil freedom as referring to the individual citizen. 

Passing from that period to the era of the declaration of 
independence, and how small was the progress. England, 
indeed, had passed through a revolution, and the liberty of the 
subject was secured, but the whole power of the government 
was vested in the aristocracy. The rest of Europe remained 
torpid as before. But little more than half a century has elapsed 
since that event, and what a revolution ! Stimulated by the 
success of this prosperous country, men every where have 



195 

awakened as from a dream, and have resolved to be free. Eng- 
land has reformed her government, and made it truly an embo- 
dying of the national sentiment. 

France reposes tranquilly under the protection of a govein- 
ment emphatically popular ; and Germany, no longer the land 
of misty philosophy and extravagant sentimentality ; but prac- 
tical and thoughtful, is moving on slowly and surely to the re- 
construction of the empire, not under an absolute head ; but a 
Germany of constitutional rights, and capable of acting its part 
efficiently in the great work of European civilization. 

To the institutions and example of this country much of this 
improvement is owing. This republic has given assurance to 
the world, that an intelligent community is capable of self go- 
vernment. Its stability has demonstrated, that no institutions 
are so secure as those which are intimately connected with the 
interests of the whole community. The prosperity of the 
country has convinced Europe, that a nation can flourish even 
when deprived of the protecting care of a monarch. 

In the great contest between the ancient and the modern, 
between the European and the American systems of govern- 
ment, the latter has finally become the ascendant. Proscription 
and ancient usage are losing their hold upon the public mind, 
and principle is taking their place. 

Men do not so much inquire whether antiquity is in their 
favour, as whether reason and justice sanction their course. 
The great truths, which our history has done so much to exem- 
plify, are daily acquiring fresh strength and new converts. 

The Holy Alliance has in vain interposed to prevent their 
progress and to restore the abuses of antiquity. 

The three days of July at Paris, proved sufficient to over- 
throw the institutions which they had so long laboured to recon- 
struct ; and at this moment circumstances clearly indicate, that 
the two great parties into which Europe is divided, are arraying 
their forces for a decisive, perhaps a final conflict. 

How long this conflict is to last, and with what vicissitudes 
it is to be marked, it is not given to us to know ; but he has 
read the history of the past with little profit, who does not fore- 
see that the progress of freedom cannot be checked, and that 
the genius of constitutional government must ultimately prevail 
over the genius of arbitrary power. 



REPORT ON ROADS, 

At the Internal Improvement Convention of the State of New- 
York, held at the Capitol in the City of Albany, on Monday, 
the eleventh of January, 1836. 

The committee appointed at the convention lately held at 
Utica, on the subject of common roads, beg leave to report, 
that, pursuant to the resolution of the convention, a circular 
was addressed to the clerks of the several towns in the state, 
requesting information as to the length of the public and turn- 
pike roads, and the number of bridges in their respective towns, 
together with the annual cost of keeping them in repair. 
Answers have been received from 266 towns, and at the time 
of making the report answers are daily coming in, so that hopes 
are entertained of making a complete statement of the annual 
cost of the roads of the state, from actual returns. The results 
of the answers already received show, that in 266 towns, having 
523,488 inhabitants, the length of public roads is 19,924 miles. 

The number of days' work annually assessed for 
their repair is 416,271. 

The amount of money annually expended in ad- 
dition, for the same purpose, . . . $23,931 

The length of turnpike roads is 579 miles. 

The annual expense of repairing the same, . 9,816 

The number of bridges, 1,221. 

The annual expense of repairing the same, . 32,962 

The whole number of towns in the state is 791, and the 
towns making returns are about one third of the whole ; but 
the population returning is scarcely two sevenths of the whole 



198 

population, and the returns, therefore, may be fau'ly estimateil 
at that ratio. According to that rule, we have the following 
results : 

Length of all the public roads in the state, 69,734 

miles. 
The number of days' work assessed for their re- 
pair is l,45fi,948. 
The additional money expended for the same 

purpose, ....... $84,258 

The number of public bridges, 4,274. 

The annual cost of keeping them in repair, . 115,303 

Estimating the value of each day's work at 75 cents, and the 
assessed labour will amount to the sum of $1,092,711, to which 
the sum of $84,258 must be added, and we have the the enor- 
mous sum of $1,176,969 annually expended in the State of 
New-York, for repairing common roads, besides $115,363, an- 
nually expended for the repair of public bridges, besides double 
that sum in constructing new ones. This, too, it must be recol- 
lected, is independent of the sums expended for turnpikes and 
toll bridges. 

If this vast sum, expended in each year, had produced results 
proportionate to its amount ; if it had effected any visible or 
permanent improvement in the condition of the common roads, 
the public might be reconciled to the burden thus annually 
imposed. 

It is manifest, however, that no such improvement is to be 
found. On the contrary, the public roads in this state have not 
visibly improved for years. Their condition in those seasons of 
the year when good roads are required, is intolerably bad. 
No epithet, however strong, can properly characterize their 
wretched state. When the snow has covered them in the winter, 
and when the summer's sun has dried and improved them, they 
are passable ; but when these natural agents cease to exert their 
beneficial influence, and their improvement is left to man ; 
judging only from the results, we should conclude that his sole 
object was to confine the traveller by walls and fences to an 



199 

artificial ditch, and thus prevent him from availing himself of 
the natural surface of the fields on either side of the road to 
accelerate his journey. 

Such are the results of the present system, expensive and 
burdensome as it is to the people of the state. Your committee 
are naturally led to inquire into the causes of its total failure. 

Among these, we are induced to assign the foremost place to 
the incapacity and inefficiency of the agents appointed to carry 
the road laws into effect. 

The path-masters do not seem to have the least knowledge 
as to the true principles upon which roads should be constructed. 
Instead of properly locating, grading, ditching and constructing 
a road of hard materials, they content themselves with laying 
out a road, not according to the face of the country, but so as 
to suit the views of the owners of land upon the route ; and 
the grading, ditching and providing the materials is one opera- 
tion — consisting of dragging earth, and generally vegetable 
mould, from the sides to the centre of the space appropriated 
for the road, to be levelled, graded, and packed by the wheels 
of the wagons passing that way. 

Roads of this description, made by heaping up mud from the 
sides, must necessarily be muddy in rainy weather. There is no 
charm in the action of the carriage wheels, to prevent the earth 
taken from the ditches from becoming mud on the road as well 
as on its sides. It consequently is soon carried from the road 
to fill up the side ditches, and the whole becomes in the fall of 
the year a quagmire, where there is no choice between the road 
and the ditches. The least reflection as to the nature of roads 
will show, that no other result could be expected. 

A road is an artificial contrivance or machine for facilitating 
the transportation of heavy loads, and its efficiency depends 
upon the perfection of its construction. For instance, upon the 
common roads in their present condition, thirty bushels of grain 
are considered a load for a pair of horses ; while upon a Mac- 
adamised road, the same team can transport with the same 
force seventy-five bushels. 

The obstacles to be overcome are friction and gravitation, 



200 

ivhich are increased, the first by the softness of the road, and 
the second by its deviation from a level line. 

The proper remedies for these difficulties are to lay out the road 
as far as practicable through a level country, and to construct 
it of hard materials, so cemented together that they present a 
smooth and level surface for the wheels to move upon. The 
former remedy can be applied by any surveyor, who will take 
the pains to examine the face of tlie country through which the 
road is to pass, with the view of selecting a practicable route. 
The other remedy is more difficult of attainment. Where 
stones can be procured, it is necessary that they should be bro- 
ken to a size that they can unite with the body of the road, and 
thus form one mass. Large stones only serve to break up the 
road, and to render it rough and impassable. 

After a full trial upon the roads of England, MacAdam came 
to the conclusion that no stone should be used in covering a road 
that could not be passed through a ring two and a half inches 
in diameter. Stones of greater size do not cement with the 
others, and remain to break up the surface of the road. 

Another difficulty to be overcome grows out of the action of 
the elements upon the road. Moisture and frost are the great 
destroyers of roads, by alternately softening and breaking the 
surface. To prevent this, the road, while its surface should be 
hardened so as to prevent the moisture from penetrating, 
should be so formed that the water will readily run off to the 
sides, where there should be ditches connected with the natural 
water courses of the country. The road will thus be kept dry, 
and the frost will have comparatively little effect upon its sur- 
face. The best shape of a road of thirty feet breadth, is a 
segment of a flat ellipsis, with the side channels about nine 
inches below the surface in the middle. This shape facilitates 
the passage of the water to the sides, and when the surface is 
properly constructed, will keep it dry and hard. The ditches 
should be sufficiently deep to be below the bottom of the metal 
or materials used in making the road, to serve the purpose of 
draining, and in April and October they should be cleared out 
so as to afford an easy passage for the water from the road. 



201 

The draining under the present system requires a complete 
reform, as it is of the greatest importance, and causes no great 
expenditure. With a surface constructed of broken stones 
cemented into one mass, and with good drains, roads are ena- 
bled to resist the action of the elements ; and the large expen- 
diture made in their construction is amply repaid by their 
greater efficiency and durability. 

In some parts of the state, however, as where clay predomi- 
nates, there is a difficulty in procuring stones of the kind used 
in constructing roads. This does not often happen ; and when 
it does, there is an abundance of material to supply the defi- 
ciency. Bricks may be used, as in Holland, to form good roads, 
and when of suitable form, and united with mortar, they will 
make a covering for a road equally capable with broken stones 
of resisting the action of the elements. These bricks should 
be much larger than the ordinary building bricks, burnt hard, 
and placed in mortar upon a surface properly shaped and 
graded, so as to form a covering for the ground impervious to 
water. 

It has also been suggested, that in those parts of the state 
where lumber is cheap, that good roads might be economically 
made, by using wood to cover their surface. This may be done 
either in the mode adopted in Russia, by placing square blocks 
upright upon the ground, and so closely packed together as to 
present a smooth and compact surface ; or the track may be 
covered with planks raised a few inches from the ground, 
united together like a continuous bridge — the planks being 
placed across the road where undulating, and lengthwise where 
level. 

Either of these modes would form hard and level roads ; and 
although the committee are not prepared to express an opinion 
as to their relative cost and duration, they are fully, satisfied 
that either mode would be economical, compared with the 
wasteful and useless expenditure of money and labour, made 
under the existing system. From the best information to which 
the committee have had access, they estimate the cost of a road 
of thirty feet track, properly Macadamised, to be $5,000 per 

26 



202 

mile ; one of burnt clay, $4,000 ; one of wooden blocks, 
84,000 ; one of planks, $3,500. These, however, are mere 
estimates, and may vary much from the truth. 

It would probably be the wisest policy to adopt the Mac- 
adamised system where practicable, and to make portions of 
roads upon each of the other modes, in order to subject them 
all to the test of experience. 

On one point, however, there is no doubt in the committee, 
that the present system should be entirely abandoned, and a 
mode adopted, which shall sooner or later give a hard and uni- 
form surface to the public roads. This is necessary, not only 
to facilitate the transportation of the produce of the state to 
market, but to redeem the community from the reproach of 
annually expending millions without efiecting or even approxi- 
mating the object proposed by the framers of the law, relating 
to common roads. 

The mode of effecting that reform is a subject admitting of 
different opinions. To undertake at once to Macadamise all 
the roads in the state would be an effort, in the opinion of many, 
beyond the ability of the community. The crossroads in coun- 
ties are not enough travelled to warrant such an expenditure at 
this time; and, in general, they are in better order than the 
more frequented roads. While the system of repairing roads, 
therefore, requires a total change in the agents employed to 
superintend its execution, it would probably be the best policy 
to apply the reform, in the mode of constructing roads in the 
first instance, to the post routes, and to devote the greatest por- 
tion of the money raised to render them perfect, before under- 
taking those of minor importance. When those are once well 
constructed, the annual expense of keeping them in order will 
be small ; and the reform of the other roads upon the same 
principles can then be undertaken, until the public roads 
throughout the state shall be put in perfect order. 

The changes which your committee think could be advan- 
tageously made in the present system, with the view of pro- 
ducing such a result, are an alteration of the present law, so as 
to establish five road commissioners in each county, who shall 



203 

be empowered to order the construction and repair of all the 
stage roads, and to employ a surveyor, under whose superin- 
tendence these roads shall be constructed and repaired. Instead 
of assessing the farmer so many days' labour, the assessment 
should be made payable in money, or in broken stone of the 
proper size and kind, to be delivered at specified places — such 
a quantity of stone to be an equivalent to a day's labour. The 
roads, then, could be repaired under the immediate superintend- 
ence of the surveyor, who should be held responsible to the 
commissioners for their condition. 

What is done in this way, would then be thoroughly done ; 
and, in a few years, the marked improvement of the roads 
would demonstrate the superior economy of those thus con- 
structed. 

Indeed, so strongly is the committee impressed with the ad- 
vantages of at once commencing this reform, upon an extensive 
scale, that they would recommend the anticipation, by way of 
loan on the credit of the state, of one half of twenty years' 
assessments ; the amount raised to be rateably divided, and at 
once applied, under proper superintendence, to the construction 
of the principal stage roads in the several counties of the state. 

Inasmuch as the amount now annually raised for the repair 
of roads equals $1,176,969 ; the sum to be thus raised by loan 
would be $11,769,690, which could be immediately applied to 
the construction of those roads, leaving the sum of $588,484, 
to be annually raised by assessment, and applied to the repair 
of roads; and a like sum to be appropriated to the repayment 
of the loan. To this might be added the tolls to be collected 
on particular roads, in case the legislature should deem it ex- 
pedient to make those who use the roads contribute, as in Eng- 
land, to their maintenance and repair. To this mode of main- 
taining roads maybe fairly attributed the excellence of those in 
England, where the roads of particular districts are placed 
under the control of trustees, who have authority to manage 
the roads as a productive estate, and who are thus enabled to 
improve the roads at the expense of those who use them — bor- 
rowing money for constructing and repairing them, and repay- 
ing its principal and interest from the proceeds of the tolls. 



204 

If, after determining upon the construction of the principal 
roads upon proper principles, similar powers should be given to 
the county commissioners for roads, a great reform would be 
effected, and the means of transporting produce to market 
much facilitated, without increasing the annual assessments. 
The importance of this improvement in common roads, would 
well justify such a step on the part of the state. With good 
roads, every farmer in the state would be enabled, at a compa- 
ratively small expense, to carry produce, which is now useless, 
to market. The difference in the expense of transportation to 
the first purchaser, so important an item in the ultimate cost of 
produce, would be 50 per cent., making a diminution of one half 
of the present cost. Taking the average amount of produce 
raised on a farm of 100 acres, beyond what is required for the 
use of the farmer, to be equivalent to 400 bushels of grain — 
an amount believed to be below the real quantity ; and with 
the present roads, fourteen journeys to the market town, with 
a two horse wagon, will be required to transport it to market — 
a labour which, if the average distance of each farm be esti- 
mated at ten miles, would employ a wagon, horses and driver, 
fourteen days. With Macadamised roads, the same labour 
could be performed in six days, with more ease to the horses 
and less injury to the wagon, making a saving, to every farmer 
in the state, of eight days in the transportation of the produce 
of a small farm, and a saving proportionably greater upon 
larger farms. 

Tiiis illustration of the superior economy of good roads, 
might be applied to other branches of industry, and their 
results would show an enormous expenditure of time and 
money thus indirectly made by the people of the state, in trans- 
portation on bad roads, to the amount, probably, of $10,000,000 
annually, a sum sufficient to put all the roads of the state in 
good order. This saving in time and money is not the only 
benefit that would accrue to the state from the adoption of the 
policy proposed. By the expenditure of the principal sum 
raised by loan, in constructing and repairing roads in the seve- 
ral counties, money would be circulated, labour employed, and 



205 

the energies and enterprise of the whole community would be 
stimulated by the actual execution of a policy calculated to 
diffuse the benefits of public improvements throughout the 
state — not advancing one part at the expense of the whole, 
but giving to each county its just share, and conferring upon 
all equal, and at the same time, substantial benefits. Among 
these may be mentioned, a more rapid increase of the popula- 
tion of the state. 

With good roads, the second and third class of lands may 
be made equally productive with the most fertile, where the 
roads are bad — the difference in the expense of transportation, 
being more than an equivalent to the difference in the quan- 
tities produced. 

Emigration from the state will be thus checked, and the 
better and more substantial class of emigrants from other states 
will be induced to settle here. A similar policy is recom- 
mended in relation to the construction of bridges. All the 
bridges over small streams, and many of those over the large 
rivers, should be made of stone, or brick, where stone cannot 
be procured. Such structures would be permanent, requiring 
little or no repair, and though more expensive in the construc- 
tion, are more economical than wood, when the expense of 
construction and repair is spread over twenty years. 

A similar mode might be adopted in constructing the bridges, 
i. e., dividing the annual assessments into two parts, the first to 
be appropriated for twenty years to the extinguishment of a 
loan, equal to one half of twenty years' assessment, the loan 
to be applied, under the direction of the state, in constructing 
permanent bridges in the several counties, and the residue to 
be used for keeping those in repair whose permanent construc- 
tion is to be postponed. 

Your committee are aware, that the policy recommended is 
liable to the objections, that it will involve great expenditure, 
and that it is novel. Objections always ready with the timid, 
the unenterprising, and those who deem the existing condition 
of things as not susceptible of improvement. 



20G 

The policy recommended, however, is not meant merely for 
the present generation. Like the public buildings and the 
canals of the state, and the aqueducts of cities, roads are in- 
tended to be permanent. They belong to the state, an exist- 
ence that is to last through ages ; and her public works should 
all be constructed with reference to an equally enduring exist- 
ence. Economy in a state is not consulted in limiting the ex- 
penditure to merely what serves the present occasion; but in 
looking forward beyond the wants of the present generation, 
and having carefully consulted the ability of the community, 
proportioning the expenditure to the importance of the object 
to be attained. 

The subject referred to the committee they deem of the 
highest importance, whether considered in reference to the pre- 
sent or the future, and they recommend, that a memorial should 
be addressed to the legislature, expressing the views set forth 
in this report. 

All which is respectfully submitted, in behalf of the com- 
mittee. 

J. BLUNT, Chairman. 

New-York, January 9, 1836. 



REVIEW OF IVANHOE. 



1821. 



The unknown author, who has so long delighted the literary 
world by his lively descriptions of Scottish scenery and Scot- 
tish manners, has now turned his attention to the more southern 
part of that interesting island. From the formal manner in 
which he took leave of his readers in the last series of Jedediah 
Clieshbotham's tales, we felt apprehensive that he had bidden a 
final adieu ; but, upon examination, we find that he had only 
finished his observations upon the Scottish character, aware, 
as he undoubtedly was, that his future essays to describe the 
manners of that nation could be but little more than copies of 
his former productions. 

He has now began (as we hope) a series of novels, or ro- 
mances, descriptive of the customs of that nation, whose early 
history and character interest us more deeply than that of any 
other nation's. England ! the birth place of our ancestors ; 
the abode of a people whose language and habits are the same 
as our own ; whose fathers, until the year 1660, felt and acted 
in common with ours. They suffered and triumphed together. 
Their warriors, their statesmen, and their poets, acquired fame 
for their American as well as for their English posterity. Chau- 
cer, Shakspeare, Spencer, Hooker, Bacon, Milton, Newton, 
and Locke, the greatest men who have appeared in England, 
confer honour, not upon the English alone ; Americans own 
the same fathers, and have an equal title to ihdLt inherited glory. 
Though injuries and insults have caused a separation of the 
two countries, and have entirely destroyed all those tender ties 



208 

and recollections which might have bound America to England; 
though the present race of Britons are the men whom their 
injudicious policy has taught us to regard as enemies with little 
reluctance ; still our descent from a common ancestry, whose 
ashes are deposited with them, makes us feel a deep and undis- 
guised interest in their country, and in the character of its 
early inhabitants. We regard it as the cradle of our literature ; 
the birth place and the resting place of those authors, whose 
works must delight while their language is spoken. Notwith- 
standing our growing strength renders us careless, and even 
contemptuous, of the prowess and power of England, and that 
we view her as a nation destined to be sorely humbled by our 
arms ; we must always feel a lingering affection for our father's 
home, and reverence England as the Romans did Athens. Her 
literature will be more effectual, than her arms in averting our 
hatred and scorn. 

Her historians and chroniclers are the recorders of the rude 
customs of our progenitors. Any investigation into olden times 
must, therefore, be interesting to us ; and it afforded us much 
pleasure to find that the mighty unknown had dated his story 
before, rather than after the Restoration. We also think that the 
reign of Richard Coeur de Lion is a more appropriate time for 
a romance than any other monarch's. The whole human 
family had been disturbed and broken up by the operation of 
principles which were anomalous in the history of man, and 
excited him to actions that now appear to be unnatural, and 
even superhuman. The crusades, for instance, would be now 
viewed as incredible, if the testimony were not of the most 
positive kind. If any person should now propose a war to be 
carried on by individuals, for the possession of the holy sepul- 
chre, we should regard him as either foolish or crazy. But 
then a bigotted zeal against the infidels had maddened all 
classes throughout Europe : army after army volunteered their 
services in conquering Palestine, and its soil was fertilized with 
the bodies of more than 3,000,000 Christians, and of an equal 
number of Turks. At the time of this tale, though the crusa- 
ding spirit had not sensibly diminished, other motives began to 



U09 

take the place of religious enthusiasm. The love of fame ani- 
mated some, and the desire of wealth prompted others, to 
assume the cross. The permanent passions of ambition and 
avarice were "■raduallv reassuminsj that swav over the mind, 
which for a time had been relinquished to bigotry and enthusi- 
asm ; and the higher classes began to practice, as well as pro- 
fess, the true virtues of chivalry. The courage of the soldiery 
of that period assumed a milder aspect, and courtesy was con- 
sidered one of the qualifications of a knight. Such a picture 
as this book presents of the generous manners of these men is 
refreshing to a person disgusted with modern manners, and 
tired of the bargaining of merchants, and chicanery of lawyers: 
he breathes a new atmosphere. The stately knights of ancient 
times are there portrayed in living colours ; the reader is in their 
company, and actually conversing with them. He forgets his 
shop and his contracts, and, in imagination at least, grasps a 
lance, and spurs his horse upon an airy adversary. 

But the interest this tale excites is not entirely owing to the 
general manners of the mass of society ; much is due to the 
characters of the two parties in the novel, and particularly to 
the characters of their leaders. We say parties, because, as 
far as we are conversant with works of fiction, it appears that 
they are nothing but relations of some contests between two 
sets of people, whose efl'orts to obtain what may be called a 
triumph make up the incidents. The hero or heroine of the 
tale acts in concert v/ith a set of persons, who endeavour to 
afford protection against the machinations of some open or 
concealed enemies, who form an opposition party, and some- 
times several parties, though all against the principal personage. 
This is the case with all those novels which now occur to us ; 
Clarissa Harlowe, for instance, is persecuted by Lovelace ; 
Amanda by Belgrave ; Tom Jones by Blilil ; Wallace by King 
Edward ; Peregrine Pickle, Roderick Random, Thaddeus, 
have all their enemies, and this author in particular has formed 
all his novels upon some party conflict. " In this romance he 
has conformed to his usual rule, and with the happiest effect. 
His selection is remarkably judicious. Before Richard the First 

21 



210 

ascended the throne of England, the Saxons were dissatisfied' 
Avith the monarchs of the Norman line, and being more nume- 
rous than their conquerors, they engaged in frequent rebellions, 
which afforded some pretext for the numerous confiscations 
and cruelties that avarice or inhumanity prompted them to in- 
flict. We do not find any Saxon patriot who endeavours to 
release his countrymen from their cruel bondage ; no public- 
spirited individual appears among them of sufficient talents or 
influence to lead them. Even Becket, who had ambition and 
genius, was totally engrossed in ecclesiastical disputes, and in 
endeavouring to establish a tyranny equally degrading with 
the Norman yoke. Among the Saxons, therefore, we find 
nothing to love, admire, or interest. We feel pity for their 
sufferings, but our pity is mingled with contempt for a people 
who had not spirit or energy to shake off their chains. 

The unfeeling, successful Normans were not more interest- 
ing until the latter part of the life of Henry II. Their inse- 
curity before that time gave them full employment, and they 
were obliged to continually exert their courage in defending, 
their conquests. But such petty rebellions of peasants against 
tyrannical masters afford no food for the romantic reader. He 
cannot sympathize in the suflerings of undistinguished indivi- 
duals, and for their tyrants he feels unmingled detestation. But 
Henry, the father of Richard, a monarch remarkable for his 
prudence and enterprise, had so firmly seized the reins of 
government, that the Saxons began to despair of ever regain- 
ing their freedom, and relinquished all regularly organized 
opposition to the Normans. Some few, indeed, were driven 
by the tyrannical forest laws into open defiance of public au- 
thority, but the great body of natives sullenly submitted to a 
power wliich could not be resisted with any hope of success ; 
and the Norman knights, finding no warlike employment 
at home, were compelled to seek abroad gratification of their 
thirst for action, in voluntary feats of chivalry and knight- 
errantry. 

AH readers of English history know, that Coeur de Lion was^ 
the first Norman monarch who loved or was beloved bv his. 



211 

English subjects. The wound inflicted by the battle of Hastings 
was not then wholly closed, but the two races had intermarried, 
and the line of division was gradually disappearing. The cause 
of a hatred so rancorous and lasting between the Saxons and 
the Normans, may be found in the history of the 11th century. 
Sufficient had been done by the Normans, in confiscating all 
the real property of the natives, to exasperate and inflame 
them ; but their mutual animosity was increased by being con- 
tinually opposed to each other. The predecessors of Richard 
had used the Normans to conquer England, and afterwards 
employed the Saxons to subdue the rebellious Normans. The 
descendants of the latter, who came over with William, had 
not yet lost their partialities for their native land, where many 
of them still owned castles, and consequently sided with their 
countrymen. These circumstances prolonged the existence of 
an animosity, which is not generally entertained by the van- 
quished against victors residing amongst them. But the cru- 
sade, in which Richard engaged, enlisted many of his subjects, 
Saxon and Norman, under his banners, and, as brothers in 
arms fighting for the Holy Sepulchre, they forgot those ani- 
mosities which had made them enemies at home. His gallant 
character did much in appeasing these hatreds : his generosity, 
romantic courage, and, above all, his undeserved sufferings, 
gained the love of his subjects, who, groaning under the 
tyranny of the profligate John, hailed his return with the 
warmest expressions of aflfection, and considered him more as 
a restorer of freedom and a patriot, than as a sovereign with 
extensive prerogatives. 

Here, then, were two parties, and the first founded since the 
conquest, who were qualified to become the parties of a tale 
or romance. Before this reign the Saxons were too much 
injured, and the Normans too ferocious and cruel, to grace the 
page of fancy. Vice ultimately successful, and virtue continu- 
ally suffering, is contrary to poetical justice — a quality which 
we wish to see in fictitious tales, because, in truth, it exists in 
real life. Both these parties are interesting. The brutal fsor- 



''I 



O 



mans, liie haughty templars, and the profligate monks, who 
favoured the ambitious designs of John, are not without some 
redeeming virtues; while the injured Saxons, and those Nor- 
mans who accompanied Richard to Palestine, form another 
party, more deserving, because of their virtue and loyalty. 

We are also much interested in their leaders. Richard, care- 
less of danger, even to a fault — generous both to friends and 
foes — realizing in his own character all the virtues of a knight- 
errant, if he has not deserved the reputation of a wise and pru- 
dent monarch, has gained a brilliant name as a gallant warrior; 
and, in spite of the formal saws of wise moralists, such glory 
will always be envied and sought after by the high-minded and 
ambitious. To see a monarch voluntarily relinquish the luxu- 
ries of his palace for the hardships of a camp — exposing his 
life like the lowest of his subjects, commands our respect, even 
when his aim is to extend his empire : but when, like Richard, 
he is prompted by chivalric or religious enthusiasm, though the 
sage philosopher may condemn such a waste of life, his exploits 
become the theme of the poet's song, and his character is 
admired by every person, until intercourse with the world 
has chilled all romantic feelings. It is owing to such kings as 
Cceur de Lion, monarchs who descended from the throne to 
mingle with their subjects, led them in battle, even there mani- 
fested their superiority, "the first in danger as the first in place," 
that the kingly character became so highly respected. Here- 
ditary monarchy was established by the merit and courage of 
the ancient kings ; and since the ridiculous doctrine of an un- 
alienable right to their thrones has been advanced, monarchs 
have degenerated, and are daily losing the respect of their 
subjects. They have confined themselves to courts — the people 
have transferred their afiections to more prominent men ; and, 
judging from the late occurrences in Europe, we should say, 
that the time has nearly arrived, when kings must resign their 
crowns, or deserve them. " To have done, is to hang quite out 
of fashion, like a rusty mail in monumental mockery." If kings 
will be slothful or stupid, their subjects forget their titles in com- 
IXjenting upon their characters, and will soon learn to consider 



213 

ihem as mere idle and stupid men. They will be restricted in 
power, or deposed, as many have been before them for the same 
cause. Interested persons, whom they have gathered around 
them, may uphold their cause for a time ; but the will of the 
people is irresistible, and must at last be obeyed. It is worse 
than useless to oppose it. Opposition only influences the public 
mind, by retarding revolutions, until the accumulated force 
becomes unmanageable, and the revolutionists are rendered 
cruel and vindictive, by the resistance of prejudice and interest. 

But to return. Of all the monarchs, who conferred lustre 
upon their stations, Richard had the most personal gallantry. 
He was a true knight-errant, seeking danger wherever it was 
to be found, and nothing was too dano;erous for his romantic 
daring. It is related of him, that at Acre or Jafla, with less 
than four hundred followers, he sustained the assault of thirty 
thousand Turks, and afterwards rode from one end of their line 
to the other, without meeting an antagonist, who dared to cross 
him in his career, or to accept his often repeated challenge. 
Such a monarch is fit to become the hero of a romance. 

At the head of the other party was John, a prince, cruel, 
mean and cowardly, whose whole life is nothing but a tissue of 
ingratitude to his father and mother, treachery to his allies, and 
tyranny to his subjects. Yet this man, with all his baseness, 
interests us, and we would willingly learn more of his character 
for two reasons; 1st. That he signed the Magna Charta ; and, 
2d. That the immortal Shakspeare has made him the subject 
of one of his tragedies. Either of these circumstances had 
rendered him too remarkable to be forgotten. And now, in the 
words of an old English ballad, 

" Let us leave talking of Little John, 
And think of Robin Hood," 

" that prince of robbers and most gentle theefe," who was a 
cotemporary, and governed his outlaws w^th as much justice 
and order, and more prudence, than many a monarch of true 
men. This redoubtable archer is himself a sufficiently interest- 
ing person for the hero of a tale. His exploits and adventures 



- 214 

would fill up a larger book than this. For near a century his 
various conflicts and robberies gave full employment to the old 
ballad makers, and at length he became so popular, that, on 
May day, the English yeomen used to assemble and perform a 
singular farce, in memory of the Hero of Sherwood and his 
merry bowmen. 

Such a life as theirs is represented to be, supplying the table 
by deer hunting, enjoying alternately the pleasures of the chase 
and the revels of a feast in the open air, with companions, whose 
bold and frank manners were untrammelled with the shackles 
of civilization, has something in it inexpressibly charming to an 
ardent imagination. 

Their insecurity only enhances their pleasure. Though men 
be desirous of preserving their lives, yet there is something so 
attractive in a life of peril, that to men of fearless dispositions 
no moments are so full of enjoyment, as when they have to 
exert all their faculties in extricating themselves from danger- 
ous situations. 

Their outlawry was the consequence of opposition to their 
oppressors, not of crimes ; and at that time thieving was a 
reputable and honest way of obtaining a livelihood. These 
circumstances being considered, it is not surprising that the 
bold-hearted Robin should have preferred plundering the rich 
oppressor, and slaying the king's deer in the forest, to culti- 
vating the soil, or tending the swine, of some tyrannical 
Norman. 

Though many hardships were necessarily attendant upt)n 
such a life, still it was better than slavery. Habit had steeled 
them against the weather. They had many a jovial feast even 
in the winter, and spring brought them all their pleasures in full 

perfection. 

" When sliaws been sheene and shraddles full fayre. 
And leaves both large and longe, 
Ill's merry walking in the fayre forest 
To hear the small birds songe." 

It is to be regretted that such an interesting character should 
be so slighted ; he was entitled to a tale of his own. If this 
author had devoted all his powers to these outlaws, and been 



215 

more careful in writing, we believe, though it is almost profa- 
nation to whisper our belief, that he might have made the Prince 
of Outlaws and Friar Tuck equal to the madcap Hal and Fal- 
staff" of Shakspeare. We think that there is no small resem- 
blance between these characters. Certainly Robin Hood and 
his merry men are not deficient in jollity, humour, or in any 
marked outline of character, to the merry prince and his jovial 
crew ; and in courage they have the advantage over all except 
the Prince of Wales. But it is useless to fancy what the author 
might have done : let us be thankful for what he has done, in 
describing the outlaw's life. As to Robin Hood, the untimely 
death to which he adverted was assassination. He was taken 
suddenly ill in a convent, and the friars bribed the physician 
who was employed to bleed him, to suffer him to bleed to death, 

"^ Thus ended the life of this good yemen ; 

" God send him eternal blysse ; 
" And all that with a hand bowe shoteth, 

" That of heaven they never mysse. Amen." 

The Normans, Saxons, and outlaws, were peculiar to Eng- 
land ; but there were orders and classes of society, who, though 
spread all over Christendom, had manners of their own, and 
entirely different from their countrymen's. Those great prin- 
ciples which had so disordered civil society, had created com- 
munities, whose members did not feel as Englishmen or French- 
men, but as belonging to a particular order. These orders were 
formed by certain principles operating upon passions, which, 
though always existing, were never so highly excited before or 
since ; and the actions of their various members displayed 
some points of the human character to great advantage in the 
eye of the poet and the philosopher. 

The Christian religion had then obtained such a commanding 
influence over the passions, though not over the reason of men, 
that it induced many of its votaries to thwart and oppose the 
dictates of nature ; considering a self-denial as the most meri- 
torious act of piety. Hence many enthusiasts took upon them- 
selves vows of perpetual celibacy and poverty. If these vows 
had been obeyed, no great evil could have resulted from socie- 



216 

ties which frustrated the great command of nature, " Increase 
and multiply." The members would not have been very nu- 
merous while performance of their obligations was rigidly 
enacted ; but unfortunately for their morals, the power of dis- 
pensing with the obligations of oaths, and of pardoning sins, 
being vested in the priests, deprived the vows of their binding 
force. The monks, like the jovial Tuck, " confessed the sins of 
the green cloak to the gray friar's frock, and made all well 
again." The vow of celibacy being thus dispensed with, many 
inducements were offered to the common people to enter mon- 
asteries. They found there food, clothing, influence ; indolent 
dispositions were indulged, and their sacred station protected 
them from violence, which was, in those turbulent times, no 
mean privilege. The monasteries consequently became nu- 
merous and full ; for the lazy, the sensual, and the cowardly, 
all flocked thither, that they might safely gratify their appetites 
under the cover of a friar's frock. But minds of a higher order 
could not be so easily contented; an ascetic piety, joined with 
a spirit of chivalry, prompted many of the nobility to enter 
into military associations of the monastic character, for the 
defence of the Holy Sepulchre ; and these knights displayed 
consummate prudence and romantic valour in prosecuting their 
holy designs, worthy of men who had sacrificed the pleasures 
and vanities of this world upon the altar of religion. The vene- 
ration paid by their more peaceful Christian brethren to these 
military monks, though perhaps deserved, was undoubtedly 
flattering to their self-love and pride, passions which were not 
a little nourished by those around them. The inhabitants of 
Palestine had been for many centuries the humble vassals of 
some imperious conqueror. Their spirit was broken and sub- 
dued ; their habits slavish and cowardly. Such a people must 
necessarily have disgusted the high-spirited Frank, who could 
not refrain from drawing conclusions favourable to his own 
character. Their foes were not more calculated to lower these 
flattering opinions. They were infidel dogs, whom it was 
meritorious to extirpate ; pagans, doomed to feel the warlike 
prowess of the Christians in this world, and to everlasting 



217 

wrath in the next ; and it is not surprising that the Templars 
should have been haughty and proud ; neither is it matter of 
great wonder, that in a country whose cities were subject to 
continual siege and pillage, whose climate was favourable to 
the indulgence of the passions, and whose black eyed girls 
were not greatly averse to a suing lover, that sometimes the 
warlike monks were tempted to enrich the church with the 
plunder of infidels, or that, in an unguarded moment, they forgot 
their vows of celibacy. Such a breach of sacred obligation 
might then have excited universal indignation ; but now, when 
eight centuries have allowed prejudice and passion to subside, 
we must candidly confess, that we are not greatly surprised that 
these vows were repeated oftener than they were performed. 
Brian De Bois Guilbert, one of the principal characters in this 
romance, is the representative of the Templars, possessing all 
their faults and virtues, strongly marked. To gratify his desires, 
he does not scruple to sacrifice the happiness and peace of any 
who may jostle him in his course. Like all the votaries of am- 
bition, he looks upon men as mere tools for his use. But his cool- 
ness in danger, his scorn of duplicity, and his firmness of mind, 
which he well describes, when in the interview with the Jewess 
in her prison, he says, " I am, Rebecca, as thou hast spoken me, 
untaught, untamed, and proud that, amidst a school of empty 
fools and crafty bigots, I have retained the pre-eminent forti- 
tude that places me above them. I have been a child of battle 
from my youth upward, high in my views, steady and inflexible 
in pursuing them. Such must I remain — proud, inflexible and 
unchanging, and of this the world shall have proof." Such 
sentiments compel our respect. We bow with awe and vene- 
ration to the mind, that towers above the accidents of fortune, 
and seems the arbiter of its own fate. This haughty Templar is 
a character very similar to Marmion ; so much resembling him, 
that we have no doubt that the same fancy portrayed hath. 
This opinion is confirmed by several scenes and personages in 
Ivanhoe, which bear nearly the same relation to Bois Guilbert 
that their originals bear to Marmion. Rowena is a copy of 
Clare ; Ivanhoe of De Wilton ; and the manner in which the 

28 



218 

latter are introduced are "alike in both works. They come be- 
fore their rivals disguised as Palmers. If Wilton with his solemn- 
aufiurv intimidates 

" Marmion, whose steady heart and eye 
Ne'er changed in worst extremity," 

Ivanhoe cowers the Templar by intimating his disgrace at Acre ;- 
if Marmion fell before his rival on Gifford Moor, Bois Guilberl 
is defeated by Ivanhoe in the lists of Ashby. The resemblance 
is striking, and confirms our belief that Walter Scott is the 
author of these novels. 

Another class of warriors little less interesting than the Tem- 
plars, was the Free Lances. In those days, no trades or profes- 
sions were honourable. There were no regularly educated 
politicians. War, religion, and love, were the occupations of 
all the high-born and ambitious, and unfortunately marriage had 
not then become a money-making business ; consequently the 
church or the camp was the only alternative of an impoverished 
nobleman. If he had a peaceful disposition, and a love of 
learning, he sought promotion in the church; but if, like De 
Bracy, he formed " his letters like spear heads and sword 
blades," he was a njilitary genius, and associating with himself 
others, who were as rich in family and as beggarly in pocket, 
he offered his services to any prince w-ho could not raise troops 
among his own subjects. Men of this description must neces- 
sarily have been hardened by the many cruel scenes in which 
they were obliged to participate. Like all other mercenary sol- 
diers, their manners were licentious, frank, even to rudeness, 
and their dispositions generous and fearless. As their object 
was plunder, they were rapacious ; and as they were poor, they 
were uneducated and illiterate. 

Of these men Maurice l)e Bracy is a favourable specimen. 
Illiterate, poor and rapacious, like his comrades, he has many 
good qualities to redeem him from reprobation — such as invio- 
lable faith, great personal gallantry, and a tenderness of dispo- 
sition, which, though not so great as to entide him to the appel- 
lation of a humane man, was remarkable in a Free Lancer. Mis- 
conduct towards Rowena and Ivanhoe, in Torquilstone ; his 



219 

reckless courage in the defence of that place ; his indignant 
refusal of John's proposal to waylay Richard, all prove a soldier, 
with much knightly pride, and some arbitrary notions of honour, 
though living in turbulent and licentious times. 

We noted one fault in the author's description of De Bracy« 
He is made to tell John of the slaughter at Torquilstone, in the 
scriptural language of the messenger to Job — an intimacy with 
the Bible, which we should not have expected in one, who 
represents the Israelites as applying to the Pope for absolution 
from the vow, which they had made in Mizpeh, that they would 
not give a wife to any of the tribe of Benjamin. The author 
is guilty of the same fault, when he puts the words of Jacob's 
children in the mouth of Wamba, who, however shrewd, and 
-even learned in jests, cannot be supposed to be well versed in 
Scripture, at a time when it was locked up in the dead lan- 
guages. 

But the most interesting personage in this romance is Re- 
becca. A Jewess, who, notwithstanding the contumely heaped 
upon her nation, preserved her character free from that mean- 
ness which the peculiar circumstances in which they were 
placed compelled them to practice. The security of the nobi- 
lity themselves, in those turbulent times, was due to their own 
power, more than to the restraints of the law. It could not be 
expected then, that the humble, persecuted, and unprotected 
Jew should escape ; especially when the bigotry of the times 
commanded, and the interest of the rapacious nobility was pro- 
moted by, the oppression and plunder of this wealthy, but dis- 
pirited people. This reign was remarkable for the prejudice 
which existed against the Jews. Directly after Richard's 
coronation, though without his sanction, a terrible persecution 
was commenced against them at York ; five hundred were 
massacred by the common people, who plundered their houses. 
But Rebecca, notwithstanding the insults and injuries to which 
she, in common with her people, is daily exposed, preserves her 
dignity of character. She appears sensible, that talents, like 
hers, entitle her to respect, and, in spite of the disadvantages of 
her situation, displays a strength of mind, and amiable disposi- 
tion, which command our esteem and sympathy. 



220 

Iler father, too, is well described ; but as our limits will not 
permit us to analyse every character in the work, we will 
barely mention one or two faults in the author before we 
conclude. 

There is a great carelessness in the composition. Many 
violations of grammatical rules, and some few of historical 
truth — such as miscalling William Rufus the grandfather of 
John. Rufus had no children, and was the brother of John's 
great grandfather. We also think, though it may seem bold to 
make such an accusation against such an author, that he has 
condescended to borrow from Godwin's novel of St. Leon. 
Page 277, Isaac uses the same language with the Jew, who 
afforded St. Leon a shelter from the inquisitors. Front De 
Boeuf has the same outlines, though he is a far inferior character 
to Bethlem Gabor. His interview with the Jew greatly resem- 
bles the conference between Bethlem and St. Leon ; and the 
destruction of their castles, and the escape of their prisoners, 
have so much resemblance, as to warrant a belief, that the 
author of Ivanhoe had the story of St. Leon fresh in his mind, 
when he was composing this part of his romance. 

These, however, are trivial faults, and we would forgive them, 
though ten times more numerous, to be as much excited as we 
were, while reading this book. We could hardly persuade 
ourselves that the scenes were unreal ; that we were reading a 
romance, instead of witnessing a tournament ; and our first 
feelings were regret, that we did not live in those times, when, 
as the gallant Froissart observed of Sir Reginald De Roye, a 
man's being " young, and in love, made all his affairs prosper." 

But the days of chivalry and knight-errantry have gone by. 
Men now seriously apply themselves to business, and neglect 
everything which has not some immediate relation to their in- 
terest. No generosity can now be shown to an enemy, without 
incurring the charge of fool-hardiness. An unsuccessful officer 
would be cashiered, if he should refuse to take odds. This 
apparent selfishness compares but poorly with the frankness 
and fearlessness of our ancestors, and our feelings are highly 
excited by the boldness, generosity, and hardihood of men, 



221 

whose situation was calculated to elicit the ruder virtues. 
This author possesses great talent in describing such characters, 
and has given interest to Scotland, and conferred much honour 
upon the Scottish character, by his celebrated novels, whose 
stories are laid in that country. 

He is now about to give the same glory to England. And 
have we no genius, who, possessing himself of the requisite 
knowledge, will employ his pen in perpetuating the rude man- 
ners of our own immediate ancestors ? Is America, the younger 
sister of the family, to be without her fairly acquired fame ? 

While we give due praise to the scenery and customs of 
other countries, let us not forget that our own are equally in- 
teresting. The religious enthusiasm, the enduring fortitude 
and firmness of our New-England ancestors, make them not 
inferior to the persecuted Cameronians. 

To see them quitting their country, their wives, and their 
children, and seeking religious freedom in a wilderness, not- 
withstanding the terrors of the ocean and of savage cruelty, 
shows no less courage and reliance upon Providence, than the 
lifting up of a standard against Charles the Second by Burley 
and his brethren. Even the poor Indians, who once inhabited 
this country, but who now, alas, have vanished at the approach 
of civilization, like the mist of the valley before the morning 
sun ; their hunting grounds have been turned into cultivated 
fields, their little wigwams removed to give room for our popu- 
lous cities ; they have long since joined their fathers beyond 
the great lake, and the place which once knew them knows 
them no more. These hunted and persecuted people have 
characters, which may vie in intent with those of the proudest 
and most ancient European nations. Sassacus, Canonicus, 
andNanunthenoo, Indian chiefs, display magnanimity, fortitude, 
and patriotism, which would cast even Roman virtue in the 
shade. In what do Robin Hood or Rob Roy surpass Philip, 
Sachem of the Wampanoags, who, by his valour and policy, 
brought the colonies to the very brink of destruction 1 In what 
part of European or Asiatic history do we find men. the work- 
ings of whose minds were more powerful or productive of 



222 

greater results, than those of our revolutionary fathers? Why 
should the names of Hancock, Adams, Henry, and Randolph, 
be less dear to us than Scotch and Enghsh heroes ? 

Is there less originality in the American character? By no 
means. Captains Church and Standish, Roger Williams, Cot- 
ton Mather, William Penn, Old Putt, and Mad Antony, as the 
old soldiers used to call Wavne, with manv others whom we 
could mention, display as strong and marked outlines, as much 
boldness and originality of character, as any of the most inte- 
resting personages in any other countries. 

Our history, too, is equally stored with interesting events. 
The assault of the Narraganset fort ; the battles of Lexington 
and Bunker Hill are not inferior to those of Loudon Hill and 
Bothwell Brig. The manner of fighting is as personal and 
singular, the feelings of the combatants as much excited, and 
greater interests depending upon the result of the conflicts. 

The persecutions of the Quakers, the condemnation of the 
witches, and the warlike preparation which the first settlers 
were obliged to make, even when then they went to the house 
of prayer, afford additional materials also for such novels. 
Neither is our scenery uninteresting. Nature has formed every 
thing in this country upon the grandest scale. She has piled 
up mountains and poured down cataracts with a bounteous 
hand. She has left us nothing to complain of. Whether we 
view the broad swelling Catskills, or the towering White Moun- 
tains, which are cloven down to their base, and atford a channel 
for the Saco, whose precipitous banks are there several thou- 
sand feet high; whether we fearfully listen to the diundering, 
foaming Niagara, or watch the stream of the Catskills, which 
reaches the bottom of an immense precipice in the form of 
dew; whether we linger on the verdant banks of the lovely 
Housatonick, or admire the lordly Hudson, as he rolls his swell- 
ing flood through a bold and romantic region, we find fresh 
cause of exultation, and are ready to exclaim, with the patriotic 
Syrian, "Are not Pharphar and Abana, rivers of Damascus, 
better than all the rivers of Israel." 



ADDRESS 



OF 



THE HOME LEAGUE 



TO THE 



PEOPLE OF THE UNITED STATES. 



1§42. 



On the first of Julv next, a new era commences in the his- 
tory of the United States. Unless some modification shall be 
made at the next session of Congress, on that day the impost 
system of the United States will be placed upon a basis as yet 
untried in this, and, as we believe, in any other civilized country. 
From that time all discriminating duties are to be abolished — 
the protection hitherto extended to the manufacture of articles 
essential to the independence of the country, is to be laid 
aside — the legislation of other nations adverse to our national 
interests is to be disregarded, and under a fixed and permanent 
duty of 20 per cent., the navigation, manufactures, and agricul- 
ture of the United Slates, so far as they are aifected by foreign 
trade, are to be committed to the caprice and hostility of 
foreign legislation ; and to be regulated, prohibited, or encour- 
aged, as the interests of other governments shall prescribe. 
How far such a departure from the established national policy 
of the United States is justified by a recurrence to our past 
history, or by sound maxims of government, is well worthy of 
consideration. 

The American people are fully aware of the grasping and 
monopolizing character of the policy adopted by the nations of 
Europe, for the government of this continent. That knowledge 



224 

grows out of their public history. It is identified with their 
recollection of the councils and achievements of the revolution, 
which was in itself an eftbrl to emancipate this continent from 
the shackles of the colonial and commercial system of Europe. 
So far as related to the territory of the United States, that 
attempt was successful. 

The establishment of our independence put an end to all 
direct control and interference on the part of England, with 
the industry and commerce of the United States. 

The indirect control of the colonial policy was as great as 
ever. So far as related to our commerce with the territories 
and islands adjacent to the United States, we were still in a 
state of vassalage. It is true that we could trade with Europe, 
and we had an equal voice in the regulation of the trade be- 
tween the United States and the colonial possessions of Eu- 
ropean powers; but their jealousy forbade all intercourse which 
was not exclusively regulated by them for the interest of the 
mother countries, and in this manner the United States were 
isolated and debarred from intercourse with all neighbouring 
colonial possessions. 

The southern part of this continent was in possession of 
Spain, and her jealousy excluded all trade with those colonies. 
On the north, England exercised a similar control, and with 
the same hostiHty to American commerce. The vast and fer- 
tile valley of the Ohio was denied all access to the ocean, 
because the mouth of the Mississippi was owned by Spain ; 
and the equally extensive and fertile shores of the great lakes 
were subjected to the same inconvenience, because the St. 
Lawrence flowed past one of those military out-posts with which 
the commercial policy and grasping ambition of England have 
encircled the globe. 

Even when under the pressure of war any European power 
opened her colonial ports to our commerce, it was deemed 
an infringement of the principles of the colonial system : and 
our vessels have been subjected to capture and condemnation 
for participating in a trade, which was stigmatised as a violation 
of the European law of nations. The resources and commerce 



225 

of this hemisphere were deemed the property of Europe, and 
ail intercourse and trade among, its inhabitants were to be 
wholly prohibited, or so regulated by her parental legislation, 
as solely to promote European interests. 

Such a prohibition was an arbitrary exercise of power, inju- 
rious to the interests and rights, not only of the colonies, but of 
the United States. It was in contravention of the natural 
rights of the inhabitants of this hemisphere, and would justify 
them in resuming those rights by force, whenever their interests 
would permit recourse to the dernier resort of nations. 

The sagacious statesmen of the revolution felt that the con- 
test was not yet at an end. The victory was only partially 
achieved. The bonds of colonial vassalage had been shaken 
off; but the broken bars and shackle-bolts still lay scattered 
around, encumbering the ground, and obstructing our path to 
prosperity and greatness. A system of policy was to be 
adopted, which should secure to the country the substantial 
fruits of independence. Among the first objects which attracted 
the attention of the federal government, was the shipping inte- 
rest ; and a law was enacted which, by a discriminating ton- 
nage duty, compensated American vessels for the burdens 
imposed upon them by the British navigation acts, and enabled 
them to compete upon an equal footing for the carrying trade 
between the two countries. 

Measures were also adopted to open the Mississippi to the 
trade of the rich territory beyond the Alleghanies, and to ena- 
ble its productions to reach the ocean by the way of New- 
Orleans. At the same time, steps were taken to obtain a fair 
share in the commerce between the United States and the West 
Indies ; or at all events, to put an end to the monopoly of that 
business, which the British government sought to secure to its 
own shipping. This was effected, after a long and protracted 
contest, by the passage of laws prohibiting all trade with Bri- 
tish colonies, in which American vessels were not permitted to 
participate . 

Among the chief inconveniences to which the new republic 
was subjected, was one growing out of the impost systems 

29 



226 

adopted by the great European powers. It found on all side» 
an interdiction, which prevented it from selling in their markets 
such productions as it found itself best able to raise. 

With the view of encouraging their own manufactures and 
industry, or to raise the means of maintaining the vast expen- 
diture of their governments, they had imposed duties so high 
upon importations as to almost exclude us from their markets. 
Against the productions of this country, so lately in the hands of 
colonial thraldom, and still obnoxious to the European prejudice 
that America was an inferior portion of the globe, created and 
cultivated solely for their use, these impost systems bore with 
peculiar force. The statesmen of the old world could not forget, 
thai, until the Continental Congress of 1776 had broken the 
thraldom, not a hob-nail, nor a yard of cloth, could be made in 
America, without the consent of European legislation ; and 
England, especially, remembered that her laws prohibited any 
manufacturing in the colonies, which could interfere with her 
staples, or disturb a policy that doomed the colonists to the 
cultivation of the soil, with the view of providing a market for 
her manufactures. 

It was in the face of this system — this general enmity — that 
the commercial and manufactuiing interests of the United 
States were to be built up ; and the policy adopted was that of 
reciprocity. We proclaimed to the world that we sought free 
trade, but to those that refused it we would extend retaliation. 
Our statesmen seemed to have been governed by the feeling 
that dictated the stern and stirring motto of old Massachusetts:: 

Ense petit placidani sub libertate quietem. 

Discriminating duties were imposed upon importations, having. 
a due regard to the ability of the country to manufacture for 
itself. Under this system, the great interests of the country 
have advanced with unexampled rapidity. The navigation of 
the Mississippi was obtained by a vigorous negotiation, which' 
more than intimated energetic action. The flag that had so- 
lately appeared among those of independent powers swarmed 
m every sea ; and within the first iialf century of our national' 



227 

existence, we stand second only to Great Britain in the amount 
of our commercial marine. Yielding to the necessity of pro- 
viding for her West India Islands supplies that could only be 
drawn from the United States, England was obliged to permit 
our vessels to trade with the colonies upon terms approaching 
to equality. 

The exports of the country, which in 1791 only amounted to 
^19,000,000, had increased in 1830 to 874,000,000, and in 1840 
to $132,000,000. After the modification of the tariff, more par- 
ticularly with reference to the promotion of manufactures, 
American fabrics began to make their appearance among our 
exports, and the United States, which, at the formation of 
the Union, exported scarcely any thing except agricultural pro- 
duce, and was dependent upon Europe for nearly all manufac- 
tured articles, had so far advanced in that branch of industry, 
as to export, in 1823, $3,352,000 of domestic manufactures, 
and in 1840, $10,614,000. 

Of these the cotton manufactures, which were not enume- 
rated among our exports until 1826, amounted to $3,550,000, 
and those of iron, to $1,101,000. 

These indications of increased skill, which now appeared in 
the exports, were but faint evidences of the great benefits con- 
ferred upon the country by the establishment of manufactures 
at home. The supply of the domestic consumption vastly ex- 
ceeded in importance the amount contributed to its foreign 
commerce; and the creation of a home market for its produce, 
gave a new impulse to the settlement and improvement of the 
country. The rural districts were enriched and enlivened by 
the establishment of single factories on the streams that had, 
till then, flowed in solitude to the sea; while the manufacturing 
towns in other districts, sprung up with a vigour and strength, 
that, in fifteen years, have made them worthy rivals of the great 
manufacturing towns of the old world. It seemed, however, 
that the prosperity of those portions of the Union, which de- 
voted themselves to commercial and manufacturing pursuits, 
excited dissatisfaction and jealousy among the planting interests. 
An opinion began to prevail, that by obtaining our supplies frona 



228 

domestic industry, the American market for foreign fabrics 
would be curtailed, and that there would be a less demand for 
their peculiar productions abroad. Influenced by this sectional 
feeling, an opposition was set on foot against the established 
policy of the country, and after a vehement contest, in which 
other considerations, which it is unnecessary here to recapitu- 
late, besides those of public policy were mingled, the opposition 
so far prevailed as to materially modify the commercial system, 
adopted at the formation of the Union. 

The etibrt to regulate the trade between the United States 
and the British West Indies was relinquished on the part of this 
government, and is now carried on under the sole regulation of 
British legislation. 

How far this has promoted the navigating interest of this 
country may be inferred from the fact, that while both govern- 
ments exercised a joint control over the trade, nine-tenths of 
the commerce was carried on in American vessels ; and that 
since the acts of Congress regulating the intercourse were re. 
pealed in 1830, by the proclamation of the President, the Brit- 
ish navigator has so far gained upon the American, as to divide 
the trade equally with him.* In fact, the intercourse between 
the colonial possessions of England and the United States, is 
regulated solely with the view of furnishing en)ployment to 
British tonnage ; and the convenience and interests of these 
great portions of the western hemisphere, which would be so 
much promoted by unrestrained commerce, are set aside and 
disregarded, in order to augment the maritime strength of 
Great Britain. The trade with the West Indies is coerced by 
burdening the direct trade with heavy duties, into an indirect 



* Tonnage employed in the trade between the United States and the British 
Colonies : 

American tonnage. Foreign tonnage. 

British West Indies. British Colonies. West Indies. British Colonies. 

1825, . . 102,000 tons. 00,000 7000 6,000 

1826, . . 97,000 75,000 8,000 9,000 

1839, . . 43,000 384,000) of this! were 24,000 322,000 

1840, . . 55,000 373,000 ) on Lakes Erie 29,000 388,000 

and Ontario. 



229 

trade through New-Brunswick and Nova Scotia, in which the 
long voyage, or that between those Provinces and the Islands, 
is exclusively confined to British vessels. 

In like manner, the grain trade between the Western States 
and England is monopolized by British navigation. The wheat 
that in the ordinary course of business would come down the 
Erie Canal, giving employment to American millers, forwarders, 
merchants, and mariners, is forced, by heavy discriminating 
duties imposed upon the direct importation, into the route of 
the St. Lawrence, to build up Kingston, Montreal, and Quebec, 
and to increase the overgrown marine of the mistress of the 
seas. 

The commerce on the Lakes has been increased from almost 
nothing, to a tonnage of half a million annually entering the 
ports of the United States from Canada ; but the whole trans- 
portation across the Atlantic is monopolized by British vessels. 

The same opposition was made to the policy of fostering 
domestic manufactures by discriminating duties, and with like 
success. After a contest, in which the opposition was carried 
to a point inconsistent with their obligations to the Union, its 
opponents succeeded in obtaining from Congress an act pro- 
viding for a gradual reduction of duties until 1842, when they 
are to be brought down to 20 per cent, on all articles, without 
reference to any of those views and principles which have in- 
fluenced statesmen in imposing discriminating duties. From 
the gradual reduction that has hitherto taken place, our me- 
chanics and manufacturers have been as yet prevented from 
feeling the full effects of unrestrained competition with Euro- 
pean labour. The great barrier has not yet been thrown 
down ; still our merchants and mechanics have already felt the 
evil consequences of government's withdrawing its parental 
care. The reduction of duties has encouraged excessive im- 
portations of foreign manufactures, and increased the disorders 
of our currency. Extravagance in the consunlption of foreign 
luxuries has been encouraged in the same degree, that domestic 
manufactures have been repressed. Importations have been 
increased, and the country has grown poorer. The whole ex- 



• 230 

ports of bread-stuffs from the United States in 1839, scarcely 
paid for one third of the silks imported ; while the exported 
whalebone and oil, the produce of the labour of our hardy 
mariners who are engaged in the whale fisheries, did not pay 
for the cigars which were imported into the United States the 
same year.* A policy which produces such results, can scarcely 
fail to end in general distress and national bankruptcy. 

Our importers and shipping merchants, also, complain of 
the disregard of their interests. The vessels of other powers 
are supplanting ours in the trade between this and the South 
American states, and four fifths of the importations of foreign 
goods in this city, have fallen into the hands of French and 
British agents. 

Had this occurred in a competition where both parties stood 
upon the same footing, the same cause of complaint would not 
have existed. But such is not the case. The terms of the 
contest are unequal. On one side there is freedom, on the 
other restriction. Our ports and markets are open to other 
nations, while theirs are hermetically sealed to all articles, 
which may come into competition with any branch of native 
industry. This state of things ought not to be tolerated by 
any independent government ; least of all by one whose very 
existence grew out of successful opposition to the same system 
of commercial monopoly. Our interests, as well as our honour, 
require that our intercourse with foreign nations should be 
placed upon terms of equality and reciprocity ; that it should 
not be regulated and controlled solely by foreign legislation. 
This was the commercial freedom aimed at by our revolution- 
ary ancestors, and we, their children, ought not to be satisfied 
with less. 

In applying a remedy, practical statesmen will look at the 
actual state of trade between this country and foreign nations. 



Imports. Exports. 

* 1839— Silks, . . $23,088,000 Bread-stuffs, . . . $8,545,000 

Cigars, . . 1,027,000 Rice, 2,460,000 

Whale oil, bone, and 

spermaceti candles, 868,000 



231 

For instance, in its intercourse with England, a power enjoying 
one half of our whole foreign commerce, it meets with two 
inconveniences, resulting entirely from the commercial legis- 
lation of that government. The first is its colonial policy, by 
which the carrying trade between the United States and the 
colonies is practically confined to British vessels. To these 
pretensions this country should offer a constant resistance. All 
the territories and islands owning a common head, or controlled 
by one government, other nations can only regard as one 
country or empire. Such is the character of the various states 
and territories represented by the federal government at 
Washington ; and such too we ought to consider the various 
islands, provinces and colonies, controlled by the imperial go- 
vernment at London. While we admit the right of all nations 
to designate the ports which foreign vessels are permitted to 
enter ; we must also regard as unfriendly the exercise of that 
right in a manner plainly intended to secure the greater part of 
the carrying trade to that party. 

The mode of retaliation, and the time when it is to be en- 
forced, may depend upon many other considerations; but set-, 
ting those aside, and none can doubt, who is jealous of his 
country's rights, that the grasping and monopolizing character 
of the laws of England, regulating our intercourse with her 
colonies, would justify us in confining the admission of her ves- 
sels to the ports of the Chesapeake, or any other part of the 
Union, which should have the effect of diminishing her share 
of the carrying trade. 

The second, and indeed chief inconvenience, to which Ame- 
rican commerce is subjected by her laws, grows out of the 
general principle pervading her commercial system, by which 
she seeks to secure the supply of her own consumption to her 
own subjects. Her revenue laws all aim ta secure her home 
market to herself. The importation of everything that can be 
advantageously produced by British capital, or British industry^ 
is either prohibited, or subjected to heavy duties, which operate 
as a bounty to the British producer. 

Practically, these laws exclude the agricultural productions 



232 

of the whole northern and western states from the British mar- 
ket, or compel them to seek admission under the guise of colo* 
nial produce, and with the view of fostering the growth of her 
commercial marine. 

This policy of excluding bread-stuffs from the British market 
is the more objectionable, as it was adopted at a time which 
would warrant the conclusion, that it was specially intended 
to operate against the United States. Before their separation 
from England, the duty on wheat imported into that island was 
merely nominal. But directly after the formation of the fede- 
ral government, a new policy was adopted towards this country. 
The first step was to exclude American vessels from the colo- 
nial trade. The second, to impose a high duty on the impor- 
tation of bread-stuffs. This was done in 1791 ; and it may be 
safely asserted, that the Corn Laws of England, which form 
so great an obstacle to free trade between the two nations, 
have originated as much out of jealousy of this country, as out 
of a regard for her landed interests. Their efliect certainly is 
to prevent those states, which depend chiefly upon agriculture, 
from paying for their importations in the productions which 
they can most readily raise ; and to compel them, either to de- 
vote their industry to other employments less suitable to their 
condition, or so to reduce the price of their produce as to force 
an admission into the foreign market in spite of the duty. The 
operation is injurious to the grain growing states ; and any in- 
jury to so great and important a portion of the Union, cannot 
be too carefully looked into, nor too speedily redressed. 

The practical remedy adopted at an early period of our 
history, was, by discriminating duties, to encourage all manu- 
factures essential to our national independence, and to compen- 
sate for the loss of a market abroad, by promoting a variety 
of employments in the country, and thus creating a market at 
home. 

The results of this policy are manifest to all. Indeed, it 
would be difficult to find a more forcible illustration of the ad- 
vantages of this policy, than is afforded by the contrast between 
those states whose citizens have adopted a variety of employ- 



233 

ments, and those that have devoted themselves to agricultural 
pursuits, during the late convulsions of the commercial world* 
While the planting and agricultural states have been (and are 
still) in the greatest distress from the low price of their staples, 
which they are obliged to sacrifice to pay for their foreign 
importations ; the manufacturing states, more independent of 
supplies from abroad, experience but little difficulty, and no 
actual distress. 

The question now to be decided by the American people is, 
whether this policy shall be given up, and the commerce and 
manufactures of this country abandoned by a government, 
which was established chiefly for their protection, to the care 
and guardianship of foreign legislation. 

The argument used in favour of the abandonment of this 
policy is, that it conflicts with the principles of free trade. If 
these advocates of free trade could show, that those powers 
with whom we had commercial relations, practiced upon that 
theory in their intercourse with the United States, there might 
be some ground for urging upon this country an adherence to 
its maxims. But such is not the fact. The great maritime 
powers of the world have surrounded themselves with a com- 
mercial quarantine. 

England takes nothing from the United States that she can 
produce at home ; and France is equally careful to protect her 
own subjects from American competition. Our trade now 
chiefly consists in purchasing from them freely all that we 
require ; and then the productions of our industry are forced 
ofl:'in all markets to which they are admitted, in order to provide 
the means of discharging the debts incurred to those countries. 
In such a state of commercial intercourse, our conformity to the 
theory of free trade is but exposing our interests, without de- 
fence, to the systematic assault of open enemies. It is relying 
upon the pacific principle of non-resistance, as a sure protection 
against a world in arms. Under such a policy, our citizens are 
influenced or controlled in the direction of their industry, not 
by the force of natural causes, but by legislation, alien in its 
character, and hostile in its views. So far as the hope of a 

30 



234 

foreign market is to influence them in the choice of employ- 
ments, they are compelled to devote themselves to the produc- 
tion of such articles as can find admission in that market. 

So far as these laws now operate upon the United States, 
they confine their citizens to the cultivation of the soil, and even 
such productions are received only in a raw or unmanufactured 
state. Nor is this the worst view of the question. The grain 
growing states, whose agricultural productions amount to nearly 
twice as much as those of the planting states, are interdicted 
from sending any portion of the results of their industry to pay 
for their consumption of foreign goods. The consequence is, 
a forced and unnatural course of trade, deeply injurious to more 
than three fifths of the Union, in point of numbers, and a much 
greater proportion, when wealth and resources are taken into 
consideration. 

To compensate them for the loss of a foreign market, the 
revenue laws have co-operated with the laws of political 
economy, in creating a domestic market. 

Our fellow citizens have been induced, by discriminating 
duties, to adopt other employments ; and those who are thus 
drawn from the cultivation of the soil, become consumers of 
the productions of those who remain. 

Since the adoption of this policy, a large portion of the com- 
munity have become manufacturers and mechanics ; and agri- 
cultural produce, which before that event was too low to 
compensate the farmer, has found a market at home at good 
prices. 

Nor has this advantage been counterbalanced by a corres- 
ponding advance in the imported articles, to the manufacture 
of which our countrymen have been induced to apply them- 
selves. Whether it has been owing to domestic competition, 
as asserted by the friends of domestic industry, or to other 
causes, as has been maintained by their opponents ; it is certainly 
true that the chief articles, whose production in this country 
has been encouraged by discriminating or protecting duties, 
have been lower in the United States since the adoption of the 
protective tariff. For instance, cotton and woollen cloths. 



235 

bituminous coal, have all fallen considerably in price since 1824 ; 
and the last article has fallen in the face of an advance in 
England. Indeed, it does not require much sagacity to foresee, 
that the production of an article here, must operate against the 
foreign manufacturer; nor to infer, that if the United States 
had imported from Europe all the articles that the protective 
system has induced us to produce at home, they would have 
been compelled to buy them at greatly enhanced prices, and 
that our indebtedness abroad and commercial distress would 
have been much increased. In fact, it may be advanced as an 
axiom in political economy, that no great and populous country 
can be dependent on foreign countrieo for either of the great 
articles of national consumption — food, clothing, or fuel. They 
may import a portion of any, or all of them ; but a reliance on 
foreign industry for the greater part of these chief necessaries 
for man, imposes a restraint on the growth of a country, which 
must for ever prevent it from taking rank in the first class of 
nations. Since the United States have approximated to that 
rank, their abihty to supply themselves with those articles, has 
greatly increased under the encouragement and protection of 
our national policy, and they have been thus enabled to sustain 
themselves in their onward career. 

For instance, the domestic trade in anthracite coal commenced 
in 1825, and it has now grown to the enormous amount of one 
million of tons annually ; sufficient to employ double the tonnage 
employed in the trade between this country and Great Britain, 
in transporting it to the United States ; and it is scarcely neces- 
sary to observe, that such a demand must have made a serious 
impression on the coal market in England. Our dependence 
on foreign manufactories for woollen and cotton cloths, has 
also been diminished. In 1830, just before adequate protection 
was given to the woollen manufacture, Great Britain exported 
101,294 pieces of woollen cloths to the United States, and in 
1840, this exportation had fallen otf to 46,945 pieces. 

In the article of cottons, the triumph of the American manu- 
facturer is still more complete. In 1825, the year when a similar 
degree of protection was given to that branch of industry, so 



236 

much of the domestic consumption was supplied from abroad, 
that the importation of white cottons amounted to 83,326,000, 
and the printed cottons to $7,710,000. Since then, there has 
been a gradual reduction, and last year the importation of 
white cottons amounted to but $917,000, and those printed to 
$3,894,000. We have, too, become competitors in this article 
for the foreign market. Our exportations of cotton cloths of 
American manufacture, which did not then appear in our list 
of exportations, now almost equals the importation, — amounting 
last year to $3,550,000. 

Are we to pause in this career ? Are we to recede from this 
position ? Is the policy which has produced such results, filled 
our land with manufacturing villages and towns, and brought 
about a state of prosperity and happiness rarely equalled 
among nations, to be totally abandoned ? 

An abandonment of the policy would bring the labour of 
Europe into direct competition with our own, and expose us to 
all the fluctuation and occasional distress to which the manu- 
facturing population of the old world is subjected. The first 
result would be, to compel the American operative to work for 
the same wages with the under-fed and over-worked labourer of 
Europe, — remunerated for his unremitting toil at a rate hardly 
suflicient for a scanty support, and sustained in adverse seasons 
by a pauper allowance from the parish. Such is the natural 
and inevitable effect of unrestrained competition. This he 
must do, or abandon his business. But to what employment 
would he resort 1 The same competition and the same fate 
would attend him in the shop of the mechanic ; and the me- 
chanics, as well as the manufacturers, must expect to be brought 
down to the same wages as those of Europe, or to adopt some 
pursuit where they will not be exposed to European competi- 
tion. If they devote themselves to agriculture, it is possible 
that the fertility of the soil and the low price of land might 
enable them to compete with the European cultivator ; but 
such an increase of agricultural produce in our market, must 
inevitably reduce the price at home, until they shall be driven 
back to the workshop with depressed spirits, and at such a rate 



237 

of wages as will enable the American manufacturers to com- 
pete with the European. 

It is no answer to this, to say, that our agricultural produce 
can be sent to a foreign market. This cannot take place, until 
its price is so low, that it becomes profitable to sell it abroad 
in the face of an onerous duty, intended to be prohibitory. 
That is, until the American farmer is willing to pay three or 
four dollars per barrel on flour, towards the support of a foreign 
government, in order to have the privilege of selling it at the 
current price. 

The policy of free trade, as advocated by these new 
teachers, aims at a reduction of wages in the United States; 
or, in other words, to place the American and the European 
labourer upon the footing of free competition. Such is the 
proposition, and no reasoning can avoid the conclusion, that an 
abandonment of the protective tariff" would produce a general 
reduction of wages in the United States. 

It is unimportant whether this results from immediate com- 
petition in branches of manufactures that continue to be carried 
on, or from a relinquishment of many now prosecuted, and 
the devotion of the labour and capital thus released, to the 
prosecution of those which vi^ould be still kept up, except that 
the latter mode would cause greater confusion and distress. It 
is undeniable that such a result must follow an abandonment 
of our long established national policy ; and the immediate 
consequence of any great prostration of our mechanical pur- 
suits, resulting from such a change, would be to render the 
country dependent on other nations for essential supplies, with- 
out any diminution of price, except for the short period required 
for the overthrow of our own manufactures. By this implicit 
adherence to the theory of free trade on our part, without re- 
quiring it from others, it is not pretended that any reduction in 
prices is to be effected except by a reduction of wages. A re- 
duction in wages is the ultimate end to be accomplished. This 
h the great object, for the achievement of which, our factories 
are to be prostrated, and our workshops shut up. 

Are the people of the United States desirous of such a result? 



238 

Upon the existing rate of wages in this country depends much 
of the pecuhar structure of society. It is owing to the higher 
compensation of labour, that the mass of our labouring popu- 
lation are enabled to educate themselves, and to maintain their 
families in a state of comfort and happiness unknown to the 
operatives of other nations. This makes them a free and in- 
dependent nation — not merely independent of foreign control, 
but in their individual feelings and habits of thinking and act- 
ing. To this they owe that state of contentment and tran- 
quillity, which has preserved the country from domestic commo- 
tions, rebellions, and civil Vv^ars — that conservative spirit and 
respect for the law, which has proved a more efficient guardian 
of the public peace than standing armies, or legions of military 
police. To this they owe the enlightened spirit which, in spite 
of occasional outbreaks of party feeling, has predominated in 
our public councils, and guided us to a position among the 
powers of the earth, that make us alike an object of jealousy 
and dread to despotic governments, and a beacon of hope to 
the friends of liberal institutions. Labour here is honourable ; 
and the chief men in our republic are all indebted for their 
rank, and the respect paid them by their countrymen, to the 
unremitting industry by which their fortunes have been built up. 

The higher rate of compensation given in the United States 
to labour, is the chief cause of attraction to the enterprising 
and industrious of older nations ; and it has made this country 
the asylum, not merely of those oppressed by political or reli- 
gious intolerance, but of that more numerous class, who, by 
adverse circumstances and the iron grasp of poverty, are pre- 
vented from obtaining an honest maintenance in their native 
land. In truth, it is to this very cause that we owe nearly all 
that distinguishes us from other countries ; and far, far distant 
be the day which diminishes the compensation of labour, so as 
to reduce the free American labourer to the same dependent 
and wretched condition, in which aristocratic institutions and 
unjust laws have placed the operatives of Europe. 

All that is paid by the property of the country for the pro- 
tection of domestic industry, and the reward of American la- 



239 

hour, is not a useless expenditure. It is a contribution for the 
maintenance of our republican institutions ; an expense incurred 
to increase the mechanical and manufacturing skill of the coun- 
try ; a tax paid for the support and education of that class, 
which, like a broad foundation, sustains the superstructure of 
the state ; and he cannot be regarded as a friend of the re- 
public, who advocates a policy that will curtail the wages of 
the free American labourer, and bring him down lo a level with 
the over-worked and degraded operative of the old world. 

On this point we take issue with our opponents, and we call 
upon all Americans who are zealous for the independence and 
prosperity of their country, to aid us in our efforts : to collect 
and circulate information upon those important subjects, until 
public opinion shall exhibit itself in a fixed resolve to protect 
and cherish American interests. Let the popular will show 
itself determined to promote those views, which were delibe- 
rately adopted at the formation of our government, by Wash- 
ington, Jefl^erson, Hamilton, Madison, and the other patriots, 
who then met in this city, to put in operation the free institu- 
tions which their wisdom had contrived, and their valour had 
established. To the people, and them firstly and lastly, we 
appeal, to carry out this policy, and by their enlightened and 
deliberate determination to vindicate, through their chosen 
agents, their commercial independence, and the rights of Ame- 
rican industry, against the insidious and hostile legislation of 
foreign governments. To promote domestic interests, the 
Home League was established, without reference to former 
party distinctions ; and to impress upon our public representa- 
tives the propriety of guarding and promoting those interests, 
our efforts will be directed. The occasion is propitious, and 
the necessity urgent, and we call upon all who love their own 
country above all others — who prefer domestic to foreign inte- 
rests, to unite their exertions to ours, until the concentrated 
eftbrts of the advocates and friends of American interests shall 
be crowned with complete success, and a policy truly Ameri- 
can and national be found to prevail in every department of 
our government. 



REPORT 



TO THE 



National convention 



OF THK 



§0me Ceagi^c, 

HELD IN THE CITY OF NEW-YORK, 
OCTOBER 13, 1842. 



It is with no ordinary feelings of satisfaction that the mem- 
bers of the Home League are enabled to look upon the occur- 
rences of this year. The headlong career of the government 
in prostrating our most important interests to gratify the 
cupidity of European manufacturers, or to practically refute 
the visionary theories of nullifying abstractionists has been 
arrested, and under the strong and determined expression of 
the public opinion of those who live by their own industry, a 
tariff has been passed, which, by affording ample protection to 
American labour, has given a new impulse to the enterprise of 
the country, and justified the confidence of those, who regard 
their own countrymen as able to furnish from their own skill 
and ingenuity the chief articles of domestic consumption. But 
although a decided step has been taken towards re-establishing 
our domestic prosperity, much yet remains to be done. By the 
policy systematically pursued by the government for the last 
twelve years, a severe blow has been given to the public credit 
of the United States. In the great forum of nations, our national 
character has been impeached ; and if we set aside all high con- 
siderations belonging to a patriotic and statesmanlike view of 
this question, still, in reference to mere pecuniary advantages 

31 



242 

attached to unsullied honour on the part of a government, more 
has been lost by the reckless manner in which those who during 
that period have been entrusted with the management of affairs, 
have contracted debts without providing any means of repay- 
ment, than all the sums that they ever promised to save when, 
smitten with the rage of reform, the people placed them in 
power. 

The public debt of the states thus contracted, forms one of 
the greatest obstacles to the restoration of general prosperity; 
and while it continues to exist without provision for the payment 
of either principal or interest, it must be productive of great na- 
tional injury and loss. The amount of this debt at this time is 
$198,000,000, of which $103,000,000 was incurred by eight 
states, that neglect or refuse to pay the interest. Of these only 
one, Mississippi, has openly repudiated : the others plead in- 
ability ; although in the cases of Pennsylvania and Maryland, 
the plea of inability is as dishonest as open repudiation. Be 
this as it may, it is clear, that in the existing state of the currency 
and of business, ihe Western states have incurred debts they 
are unable to pay. 

They have no wealth but agricultural produce, and the ex- 
pense of transporting it to market renders it of comparatively 
little value in reimbursing their debts. In order to enable them 
to pay them, they must be aided ; and nowhere can they look 
for aid except to the general government. That government 
is interested in restoring their credit, as its own credit is inti- 
mately connected with that of the several members of the 
Union. Credit depends not only upon means but upon cha- 
racter. A reputation for integrity, a high sense of national 
honour, affords better pledges for the faithful discharge of na- 
tional obligations, tiian all the wealth of the Indies in hands 
which are insensible to the suggestions of justice. 

The credit of the Union, as well as that of the states, has 
already been deeply aftected by the failure on the part of some 
of them to pay their bonds. The public opinion of the world 
has already arraigned the whole Union as defaulters in their 
engagements. They have been regarded as members of the 



243 

same family, and it is not remarkable that they have been 
identified in reputation. 

This Union under one government, through which only they 
are known to otiier nations, makes them one not only in peace 
and war, but in good and evil repute. We cannot avoid this 
responsibility by asserting, that Mississippi alone is responsible 
to the world for her debts as a state. By our Constitution we 
have exempted her from being sued to enforce the perform- 
ance of her contracts. As a state, she is only responsible under 
the law of nations, for the performance of her obligations 
towards the citizens of other powers. Their governments, in 
enforcing their performance, can only do so in the mode pro- 
vided for the arbitrament of national controversies — by nego- 
tiation or the sword. But in the adjustment of all claims on 
the part of other countries upon the states of this Union, the 
Federal Government alone can be addressed. The separate 
states cannot treat nor enter into any agreement with a foreign 
government. That is their sole representative in their relations 
with foreign powers. If a demand be made by France or 
England, in behalf of their subjects, for payment of state bonds, 
it must be presented through the national government. If war 
is to be declared, in the absence of all other remedy to enforce 
payment, it must be waged against the United States, and it is 
the blood and treasure of the whole Union that must be ex- 
pended to sustain the dishonest cause of repudiating states. 

It is then absurd for us to say, that we have no concern with 
those repudiated bonds. The consequences of the act must 
fall upon the w'hole Union, as well as upon those dishonest states 
who have violated their engagements. It is a matter of high 
national concern to wipe off this stain upon the country. No 
subject is more deserving the attention of an American states- 
man than that of resuscitating public credit. 

It cannot be done entirely by direct taxation. The debts of 
Indiana and Illinois are beyond the ability of their population. 
Their discharge can only be effected by the aid of the general 
government ; and by that aid, efficiently given, provision can 
be at once made, by which the credit of these and other 



244 

states can be restored, and the prosperity of the whole country 
re-established. 

Is there not something, too, in the character of these engage- 
ments, which peculiarly recommends them to the attention of 
the national government? 

The greatest portion of the state debts was contracted during 
and subsequent to the first administration of General Jackson. 
Previous to his accession to the Presidency, the currency of the 
whole Union had been especially under the supervision of Con- 
gress. It had been thought, that to regulate so essential an 
element of national prosperity, and to provide a medium of 
domestic exchanges, was not unworthy of attention. So, too, 
the improvement of the means of internal intercourse: the 
removing obstructions from harbours and those vast rivers 
formed by nature to bind this extensive country together under 
one government ; the aiding, by liberal appropriations, the en- 
terprising etforts of state corporations to construct canals and 
rail-roads, were deemed fit objects for the encouragement of 
Congress, 

This policy, commenced during Mr. JeflTerson's administra- 
tion, was enlarged in proportion to the augmented means of 
the treasury ; and as the period for the extinction of the na- 
tional debt approached, the country looked forward with hope 
and eager expectation to the time, when, by the release of 
$10,000,000, annually appropriated by law to the sinking fund, 
9,mple means would be placed at the disposal of Congress to 
promote internal improvements throughout the Union. 

The necessity of making a great eftbrt to improve the internal 
communications between different portions of the country was 
every where acknowledged. While the cultivator of the soil 
was compelled to transport his productions to market over 
roads, which in spring and autumn resembled ditches rather 
than roads ; or down rivers, where snags and bars often destroy 
the labours of a season, the cost of transportation absorbed too 
great a proportion of his crop. He felt, that an improvement 
in the means of transportation was a direct benefit to him ; 
gqd that it would render a numerous class rich, who were now 



245 

kept poor by the enormous expense of carrying their produce 
to market. In the West this feeUng pervaded the whole com- 
munity. The practical benefits conferred upon this state by 
the Erie Canal had opened their eyes to the great advantages 
of an improved system of communication with the seaboard; 
and in looking round for the means of constructing canals and 
roads to that great avenue, and removing the natural obsta- 
cles, which time had created in their magnificent rivers, they 
found that the great source of indirect revenue — the customs — 
was vested in the national government, and that the proceeds 
of the public lands were periodically drawn from the West, to 
be expended under the same authority. 

Under such circumstances, it was not surprising that they 
should expect some aid towards objects of such paramount 
importance from the general government. The national inte- 
rests required such expenditure, and their own deficiency of 
means compelled them to ask it from that source. The prac- 
tice under almost every administration had sanctioned such 
appropriations ; and after the deliberate sanction given by Con- 
gress in the last year of Mr. Monroe's administration to a sys- 
tem of internal improvement, under the authority of the general 
government, they had good ground to look forward with confi- 
dent hope to the time, when, upon the extinction of the public 
debt, the large surplus revenue, that would then be at the dis- 
posal of Congress, would be applied to the construction of 
public works, which should command the approbation and pro- 
mote the prosperity of the country. 

That moment at length arrived ; but it brought with it bitter 
disappointment and still more bitter fruits. The government 
was in hands that no longer sought to promote the general wel- 
fare, but to find a mode to curtail its powers and abridge the 
sphere prescribed in the constitution for their exercise. The 
expenditure of its surplus revenue for the internal improvement 
of the country was declared to be beyond its authority, and, 
after rejecting a national bank as both inexpedient and uncon- 
stitutional, the regulation of exchanges and the currency, and 
the promotion of internal improvements, was abandoned to the 



246 

care of the state governments. It was in the assumption of 
these powers that the financial difficulties of the states origi- 
nated. The performance of these duties, which required ex- 
penditures beyond the means of the new states, but whicii were 
imperiously demanded by the wants of their population, caused 
a rapid increase of stale debts. 

Previous to the repudiation of these powers by the national 
government, the state debts amounted to but $20,470,420. Du- 
ring the interval, from 1830 to 1835, new debts were created, 
amounting to $43,512,766, and the next five years produced a 
further increase of $134,896,318, making in all $204,879,504. 
It is a striking fact, too, that most of this great augmentation 
took place in the states that now make no provision for their 
interest. The following table shows the debts of those states 
in 1830, and their present debt : 



1830. 



1840. 



Pennsylvania, 


. $0,300,000 


$33,016,149 


Maryland, . . 


676,689 


15,000,000 


Indiana, . . 


. . none. 


10,064,000 


Illinois, . . 


(( 


11,772,550 


Michigan, . . 


(( 


5,340,000 


Arkansas, . . 


(( 


3,100,000 


Florida, . . . 


a 


3,950,000 


Mississippi, . . 


ii 


12,000,000 




$6,976,689 


$94,242,099 



The increase in the whole public debt of the states from 1830 
to 1840 amounted to $178,409,084, of which $87,360,010 took 
place in the defaulting states. 

This great increase of indebtedness was the legitimate result 
of the new policy of the general government, and might have 
been easily prevented by the exercise of ordinary sagacity on 
the part of those to whose hands it was entrusted. Annual 
appropriations of the large surplus revenue by Congress for 
internal improvements, would have satisfied the public expec- 



247 

tation with the gradual construction of all necessary public 
works, and would have prevented those spasmodic ertbrts, that 
were made when the national government withdrew from the 
performance of its duty. 

It was easy to foresee that these efforts would be made. The 
greater portion of the works proposed were indispensable. 
The community required them from the same motive that a 
mechanic requires tools, or a farmer agricultural implements, 
and the public mind was excited in devising means to construct 
them. They were beyond the reach of individual or even cor- 
porate means, and the government alone, as it was believed, 
had adequate means to complete them. 

The refusal of General Jackson to sanction any appropriations 
from the public treasury for such purposes, left no alternative 
but to apply to the state legislatures, and they readily assented 
to the request. 

At this period, there was a large and increasing suri)lus in the 
national treasury, and its removal, by his orders, to the state 
banks, gave an inipulse not only to private enterprises, but also 
a powerful support to state credit. The ease with which 
money was obtained induced the states to embark in great 
undertakings, many of which, under a more prudent adminis- 
tration of public affairs, would have been postponed to a more 
convenient season. A large amount of government stocks was 
authorized to be issued, which in a few years swelled the sum 
of the state debts to $205,000,00{\ 

Tiic objects for which these stocks were issued, show how 
directly this debt originated in the state governments beino 
compelled to assume the performance of duties properly apper- 
taining to the general government. Of this debt, stocks to the 
amount of $1 12,072,599 were issued for canals and rail-roads, 
and $52,640,000 for banking purposes. The latter being 
deemed necessary, and actually recommended by the men then 
in power, to supply the capital withdrawn by the United States 
Bank from the southern and western states. 

Under these circumstances, is it a just and proper course to 
be adopted by the national government, to turn its back upon 



248 

the indebted states, and to leave them to the embarrassing cott^ 
sequence of their imprudence 1 Is it not in some degree answer- 
able for their being involved in this load of debt 1 Had those 
entrusted with its constitutional powers exercised them with a 
due regard to the interests of the whole country, and followed 
the wise and prudent course, which in the preceding adminis- 
tration had been sanctioned by experience and justified by suc- 
cess, can there be any rational doubt, that the wide spread 
desolation and distress resulting from the novel policy of the go- 
vernment would have been averted ? Is there not, then, a strong 
obligation resting upon the general government to do something 
to remedy evils in no small degree attributable to the repudia- 
tion of its own powers ? Especially when by so doing it raises 
its own credit, redeems the honour of the country, does justice 
to the foreign creditor, and avoids the discussion of those ques- 
tions which, sooner or later, must be forced upon its considera- 
tion by foreign powers, when they shall find no other mode of 
obtaining payment. 

This surely is an object as well worthy the attention of an 
American Congress as any that has heretofore engrossed its 
deliberations. 

It remains to inquire in what mode this desirable end can be 
attained by the interposition of Congress^ 

The aid contemplated under Mr. Clay's bill for the distribu- 
tion of the proceeds of the public lands is not in itself sufficient. 
It is very desirable as far as it goes ; and ought to be insisted 
on, not only as an encouragement to the stales to make an effort 
to meet their engagements, but as a restitution of property 
which was vested in the general government for national pur- 
poses, and which is now relieved from all lien by payment of 
the public debt. 

It is, however, inadequate to accomplish the desired end, al- 
though it serves to indicate a means by which it can be accom- 
plished. 

A certain portion of the public lands can be set apart and 
pledged to the specific purpose of redeeming a stock issued by 
the general government, bearing a low rate of interest, say 



249 

3 per cent : — this stock to be issued for the redemption of 
state stocks at par, to such as should choose to make an ex- 
change. 

A large portion of the stock of the defaulting states would 
be thus absorbed ; and the residue, improved in value, would be 
held by its owners, in the hope of obtaining payment in full. 
The states not requiring aid could take their proper portions, 
either in lands, 3 per cent, stocks, or in the stocks of their sister 
states, at option. A tract of less than 80,000,<)()0 of acres, set 
apart for this purpose, would serve to absorb this debt, that now 
hangs like a mill-stone upon the community. 

It would not, it is true, discharge all the state debts, nor is it 
necessary that this should be done. It would, however, extin- 
guish so great a portion of those on which no interest is paid, 
as to encourage the defaulting states to make a vigorous effort 
to comply with their engagements. If further aid be required, 
let it be extended by liberal appropriations made by Congress 
to complete those great national works in Indiana, Illinois, 
Michigan, and in other states, which are now lying useless for 
want of means to complete them. An immense amount of 
property, now valueless, would be brought into active use ; and 
the benefits proposed from the construction of those works 
being realized, would not only stimulate the people of those 
slates to exert themselves, but would add to their ability to dis- 
charge their obligations. For instance, the Illinois and Michigan 
Canal, which unites the upper lakes and the valley of the Mis- 
sissippi, is already partly finished ; when completed, it would 
yield a large and increasing revenue ; but it is now entirely 
valueless, from the inability of the state to appropriate another 
dollar towards its construction. 

A comparatively small appropriation by Congress, for which 
ample security could be taken by a lien on the tolls, would serve 
to complete it, and in so doing would not merely give value to 
the work already accomplished, but would improve the property 
in its vicinity, and encourage and enable the citizens of that 
state to make proper efforts to meet engagements that now 
seem beyond their means. 

32 



250 

In inuny other slates a similar condition of affairs exists, and 
like effects could be produced by the same means. 

The objection that has been sometimes urged from the alleged 
want of constitutional power to make internal improvements, 
is utterly devoid of all reasonable pretence. Even the adminis- 
tration of General Jackson, hostile as he was to appropriations 
of this character, was compelled by sheer necessity to assent 
to them to such an extent as to obliterate all distinction, on the 
score of the Constitution, between those it sanctioned and those 
it condemned. It would be difficult to find any internal im- 
provements which could not be justified in principle by the 
appropriations made from i830 to 1837, for roads in Ohio, In- 
diana, Illinois, Maine, Michigan and Arkansas, and for improv- 
ing the Genesee, Huron, Black and Grand Rivers in Ohio and 
Connecticut, and Ashtabula Creeks. 

There is as little force in the objection made to these appro- 
priations on the score of expediency. 

Setting aside the considerations growing out of the peculiar 
circumstances in which the debtor states are now placed, and 
viewing it merely as a mode of granting public aid to internal 
improvements, there are strong grounds for exercising this 
power, especially in w orks of a national character, by Congress. 
While the aid granted does not go beyond the surplus funds in 
the treasury, it is impossible that it should give rise to a spirit 
of extravagant speculative improvement. The vast extent of 
country over which these improvements are to be extended, 
forms in itself an obstacle to improvements of this character. 
If made simply from surplus revenues, the means provided 
from that source would be scarce adequate to the construction 
of works of indispensable necessity ; and if, by any combination 
in Congress, appropriations should be made beyond that limit, 
the people would take the alarm and check extravagant expen- 
ditures, before they had involved the government to an unwar- 
rantable extent. 

A public debt, that would appear small when incurred in 
separate sums by twenty-six states, would have shocked the 
public mind in the aggregate as extravagant and monstrous for 
one governnjent. 



251 

It cannot be believed, even by the most bigoted partisan, 
that so large a public debt would have been authorized by 
Congress, as that which was incurred by the states, when the 
general government shook off its responsibility, and disclaimed 
any interest in, or control over, the great question of internal 
improvements. If the policy of applying the surplus revenues 
to that end had been continued, a gradual improvement would 
have been made in the most important channels of intercom- 
munication without inconvenience to the country, and the crisis 
brought about by a departure from that policy would have 
been averted. 

The improvements, too, would have been more judiciously 
made. The national government has already in its employ a 
corps of competent engineers — men not depending for employ- 
ment upon local proprietors, who, in many instances, have set 
on foot the state canals and rail-roads, but independent in their 
position, and looking to the location of the works solely in a 
professional point of view. 

Receiving authentic information from^such a source, — repre- 
senting the whole Union, and with so many indisputably essen- 
tial works pressing upon its attention, is it not certain that Con- 
gress would not have been betrayed into the construction of 
many of the merely speculative projects, that have so materially 
augmented the load of state debt. 

Independent of the reluctance evinced by a certain class to 
any expenditure of public money, the local predilections of 
members whose districts were not immediately benefited by a 
proposed improvement, would present an obstacle almost insur- 
mountable to an appropriation for any object not clearly national. 

If, by improper combinations, any extravagant charge should be 
made upon the treasury, its amount would be much more likeK^ 
to affect public attention, and to draw down the rebuke of the 
people when in the aggregate, than if distributed among the 
several states. 

Under such a policy the great national routes would be 
gradually established, the Western rivers cleared of the obstruc- 
tions which have been deposited there in the course of ages, and 



252 

the harbours on the Atlantic and on the lakes improved to 
meet the wants of our growing commerce. 

A national character, too, would be given to such works, and 
they would be combined into a system, so as to promote the 
general welfare more perfectly under the supervision of Con- 
gress tlian of the states. We should not see Maryland nor 
New-Jersey levy a tax on the citizens of other states passing 
through their territories, under the pretence of granting charters 
to rail-road companies. 

The absurd and rather discreditable disputes in relation to 
transporting the mail on rail-roads, which have characterized 
the last few years, would be obviated, and an efficiency would 
be given to the Post Office Department, greatly promoting the 
public convenience. 

It is not contemplated under this policy, that the general 
government should take upon itself the construction of all in- 
ternal improvements : but simply that it should aid in those of 
a national character ; and that in the present emergency it should 
lend its powerful arm to extricate the states from their existing 
difficulties. There is a wide difference between a judicious 
system of constructing and aiding in the construction of national 
works; and the disclaiming of powers vv'hich were vested in 
Congress for wise purposes, and which should be exercised as 
far as the national finances will permit. 

Indeed, nothing less than a liberal exercise of these powers 
will or should satisfy the hardy and increasing population of the 
West. 

The new states, scions of the old thirteen, have not gone into 
the wilderness like outcast Ishmaelites, severed for ever from the 
parent stock. They still form part of the great republic, and in 
a national point of view, it is wise and just to let them feel that 
they are objects of national care and affection — that the national 
government is willing to expend for their benefit and conve- 
nience a portion of the monies a'nnually drawn from them, 
whether directly from the sale of the public lands, or indirectly 
through the customs. 

The rapid increase of this portion of the Union in population 



253 

and agricultural resources, demonstrates the propriety of aiding 
states thus situated, in improving their communications with tho 
seaboard. 

Every dollar judiciously expended in that way, brings an 
adequate return. In a national point of view, and considered 
simply with reference to the increase of the common wealth, 
every dollar thus expended doubles itself in five years. 

If the augmented value of the land through which they pass 
be taken into view, the calculation will appear to fall far short 
of the true estimate. The western part of this state shows a 
much greater increase since the construction of the Erie Canal 
than ten times its cost, and it can scarcely be doubted, that its 
rapid growth in wealth has been in no inconsiderable degree 
produced by the diminution of expenses in transporting its pro- 
duce to market. Adopt a similar policy in relation to the West, 
and the national wealth, its commerce and resources, will be 
incalculably increased. It is almost the only way, in which the 
national government can extend its expenditure to that part of 
the Union. The army and the navy are stationed elsewhere. 
The expenditures for the Atlantic harbours, for custom-houses, 
the mint, and the departments, are all made on the seaboard. 

The West can be benefited only by internal improvement, and 
it is the glory of such policy that it benefits all parts of the 
Union. The manufacturers of the East and the New- York mer- 
chants are as much interested in diminishing the expense of 
transportation to the interior as its own inhabitants. The pro- 
duce of the West is made cheaper to its consumers on the sea- 
board; and the farmers buy more foreign commodities with the 
same crop. 

So, too, the South will find the value of its peculiar productions 
enhanced in the same manner ; and its planters, instead of set- 
tling on the banks of the rivers, will extend themselves along 
the lines of the national rail-roads. 

What advantages this part of the Union may derive from a 
system of roads, that enable a body of troops to move rapidly 
over a large extent of territory, in case of internal commotions 
among its servile population, they can best appreciate. 



254 

The whole country is undoubtedly rendered incalculably 
stronger, in a military point of view, by such roads; and it can 
scarcely be doubted that one million expended in this manner 
confers more real strength than ten millions in fortifications. 
Troops from the military stations and the interior, and munitions 
and cannon from the depots, are promptly transported to the 
points assailed ; while in case of a war where the Canadas were 
to be attacked, our whole military force could be precipitated 
upon any point of the frontier, before the force for its defence 
could be concentrated to protect it. 

Such expenditures, unlike all others of a military character, 
are useful in peace as well as in war, and contribute to the 
wealth of their country more than their cost. 

Those portions of the Union where aid is required for their 
construction, are poor in capital, though abundantly rich in na- 
tional resources and the elements of wealth. New-England, 
New- York and New-Jersey, require comparatively little aid. 
They can construct their own internal improvements from their 
own means. They are, however, benefited by being brought 
nearer to their best customers, and by having their supplies 
brought cheaper to market ; and their representatives have 
generally shown that they understand their true interests, by 
advocating large and liberal appropriations for internal improve- 
ments at the South and West. The agricultural resources of 
those sections of the Union would be then developed to the 
best advantage, and our growth, great as it has been during the 
first half century of our national existence, would be quadru- 
pled under a policy, which gave to our industry and enterprise 
the advantages and profits of steam power, and the improved 
mode of intercourse by rail-roads and canals. 

By the resumption of this policy on the part of Congress, all 
would be done that is required to complete a plan for redeeming 
the honour of the country; and that without fastening upon the 
general government a debt so great as to appal the public. 
The western states would feel that they were not mere "hewers 
of wood" for the rest of the Union. 



255 

The fostering hand of the national government would be felt 
in the benefits diffused through the fertile territory watered by 
the father of rivers ; and the hardy yeomanry, that are now 
engaged in rearing up the mighty states which stretch along its 
banks, would yearn with even warmer patriotic sentiments 
than now fill their hearts, towards that Union to which they 
owe their existence, and which came forward with its great 
resources to save them from the consequences of youthful pro- 
digality, and to redeem their honour from the reproach of the 
world. Convince them that we are united in fact as well as 
in name; that we all belong to one country; that this great 
confederacy has not lost its identity or its character in advan- 
cing beyond the Alleghanies; but that it responds in everything 
touching the interests and honour of the states, to the glorious 
motto emblazoned on its banner, " E Fluribus Unum." Such a 
policy would impart new life to the country. 

Instead of a Union of insolvent states, with exhausted trea- 
suries, decayed credit, alienated feelings and distracted councils, 
whose resources are dried up, and whose energies are paralyzed 
by the blighting effects of a cold and selfish policy on the part 
of those entrusted with the direction of national affairs ; an 
example would be afforded to the world of the advantage of 
republican institutions administered for the general welfare, — 
applying their resources, not in senseless pageants, nor expen- 
sive military establishments, but in promoting the internal im- 
provement of this fertile country, developing its powers, and 
extending its sway over the yet unexplored continent — sowing 
it broad-cast with flourishing villages and populous cities, and 
enabling this great confederacy to fulfil its high destiny. 



LECTURE ON COAL, 



BEFORE THE AMERICAN INSTITUTE. 



When we look at the uses to which fire is applied ; when 
we consider how much it contributes to the comfort of man, 
either directly by affording warmth or in preparing his food, 
or indirectly in the scientific or manufacturing arts ; when we 
reflect that without this important agent, most of the mechani- 
cal arts would be useless ; that steam could not be generated ; 
that tin, lead, copper and iron — and, indeed, nearly all the 
metals — would remain in the shape of useless ores, we cannot 
but acknowledge that to this ethereal element, civilized society 
is indebted for the greatest portion of its superiority over savage 
life. 

So important is its agency upon our destiny, that, in some 
countries, it has been worshipped as a deity, and in the Grecian 
mythology its introduction among men was attributed to the 
daring theft of Prometheus ; and so much did the sire of gods 
resent of the conferring this vast power upon man, that the 
punishment of its author was destined to be eternal, and terrible, 
in sublime horror, above all the retributive punishments of 
paganism. In the early stages of society the readiest means of 
obtaining fuel were furnished from the forest. Wood is not 
only excellent as fuel, but it is easy of access, and was, of course, 
first resorted to. As society advanced, wood became scarce, 
and it was wanted for so many purposes, that it was a desirable 
object to provide some other substances to be used as fuel. 

Even in the United States, boundless as the forest seems, 
there is a deficiency of wood in certain portions of the country. 

33 



258 

In the old states men are beginning to estimate trees rather as 
timber than fuel; and tlie time is rapidly passing away, in all 
parts of the Union, when it is deemed that the best mode of dis- 
posing of the noble trees that grace the American woods is to 
turn them into ashes. On the sea-coast, that time has long since 
passed, and for many years the community has been anxiously 
seeking some substitute for the rapidly diminishing forest. 

Such is, in fact, the natural progress of society. A dense 
population, except in tropical climates, cannot be supplied with 
fuel from the annual growth of the soil ; and the mode in which 
a substance, containing in a concentrated form the means of 
producing fire, is stored away in the earth for the use of man in 
the advanced stages of society, affords a striking proof of the 
wisdom and beneficence of that Power which created this 
planet and its inhabitants. 

Although coal is now universally used in England, it is only 
about two centuries since it came into general use, and it was 
not known at the time of the conquest. In the borough laws 
promulgated in 1140, privileges are granted lo those who sup- 
ply towns with fuel, i. e. wood, turf, and peat. No allusion is 
made to coal ; and it is not until nearly a century afterwards, 
or about six hundred years ago, that any mention is made of 
coal as a fuel. Pius II., who visited England in the fifteenth 
century, speaks of it as given for fuel to the poor beggars by 
the monks. 

In China it w^as, however, known much earlier ; and Marco 
Patilo, who wrote in the thirteenth century, speaks of it as then 
used in the province of Cathay, for fuel. The descriptions, both 
of Pope Pius and Marco Paulo, obviously show that its use for 
such purposes was a matter of wonder to them, and prove that 
it was not known to the nations of the European continent. 

At the end of the sixteenth century, in the reign of James the 
First, of England, its use in making iron was not known in 
Scotland. It may, therefore, be regarded as a modern dis- 
covery ; and to its general application to the mechanical and 
manufacturing arts, may be fairly attributed their great advance- 
ment within the two last centuries. The present importance 



259 

of the coal business in Great Britain niay be estimated by the 
number of persons employed in it, amounting to 150,000, and 
furnishing 21,000,000 tons of coal, for the annual consumption 
of the island. 

There are seven kinds of British coal. The first is known 
as Newcastle or Sunderland coal, being of a fat, bituminous 
quality, melting, when heated, to a mass, and caking, and pro- 
ducing but little ashes. This coal is also found in Scotland. 

The general character of Scotch coal is different. It is of 
two kinds , the rock coal, which burns to a good cinder, and 
produces but little ashes ; and the splent or stone coal, which 
is slaty, and burns freely, with considerable smoke. It is found 
in very regular strata, like slate. The fourth kind is caimal or 
parrot coal, which is very light and inflamn)able, burning very 
freely, with light ashes. The fifth kind is culm coal, which is not 
easily ignited, emits neither smoke nor flame, but burns a long 
time, with a heat like anthracite or charcoal. It does not cake, 
nor produce much ashes. Tlie sixth kind is jet, which is like 
the cannalcoal, except that it breaks in the direction of the grain, 
whereas cannal coal breaks in any direction, and is of uniform 
texture. Jet is found in detached masses, and not in strata. 
The last is anthracite. 

Many curious speculations have been made as to the origin 
and nature of coal, whether mineral or vegetable. The saga- 
city and industry of modern geologists have, however, solved 
these doubts, and at the same time have thrown much light upon 
the construction of the earth, and its general adaptation to the 
present uses of man. From the examination of fossil remains 
and of the strata in which they are found, conclusions approach- 
ing to demonstration have been drawn, both as to the natural 
history of the globe and the modifications or revolutions which 
its surface has undergone. In penetrating the earth in low lands 
or intervales to a great depth, we come to horizontal strata, conir 
posed of various substances, and abounding with marine pro- 
ductions. Every portion of the earth, every continent, every 
large island, exhibits this phenomenon. 

We are consequently brought to the conclusionj that the sea 



260 

has at some period covered the earth, and that it must have 
remained there for a long time in a tranquil state, in order to 
account for the formation of deposits so extensive and so solid. 

What was the previous state of the universe at that sublimely 
mysterious period, when, in the language of inspiration, " the 
earth was without form and void, and darkness was upon the 
face of the deep," must be left to conjecture. 

It has been supposed that in the first stages of creation the 
material universe was in a gaseous, watery state, and that when 
the principle of gravitation was by Omnipotent Power imparted 
to matter, or, as expressed in Scripture, "the spirit of God 
moved upon the face of the waters," the parts began to cohere 
and arrange themstilves in an order somewhat resembling that 
which now exists; the more dense or heavier particles faHing 
to the centre in strata ; then the water, and finally the atmos- 
phere, gradually growing more rarified, until it became difficult 
to draw the line between the outer regions of atmospheric air 
and pure ether. In the first moments of existence, the struggle 
between the rays of the sun and the dense vapors still floating 
in the atmosphere, must have seemed doubtful ; and the first 
stage of creation might well refer to that process which divided 
the light from the darkness, while the second would as naturally 
relate to the gradual precipitation of the waters from the at- 
mosphere, or "the division of the waters which were under the 
firmament, from the waters which were above the firmament." 

Then commenced the precipitation of those extensive hori- 
zontal strata, from which the opinion is derived that the waters 
at one period covered the earth. 

Above these strata are to be found the inclined or vertical 
strata, which form the ridges of the secondary mountains. 
These strata, however, do not rest on the horizontal strata, but 
come up from beneath, as if they had broken through by some 
mighty convulsion, elevating their heads above the deep to form 
the dry land, while the receding waters were gathered together 
in the seas which contained them. 

From the position of these inclined strata, it is evident that 
the earth has been subjected to one or more internal convul- 



261 

sionsof a volcanic character, which have produced these seeming 
irregularities, and elevated these strata so as to bring them 
within reach, to be made serviceable to the uses of the in- 
telligent beings that were to inhabit its surface. It is also 
equally evident, from the absence of all remains of organized 
matter in these strata, that those convulsions occurred before 
the creation of animate nature. Indeed, the heat of the globe 
during these convulsive throes, of which there is abundant evi- 
dence, would of itself have prevented the existence of organized 
life. 

From the abundance of the remains of marine animals found 
in the strata thiough whicii the inclined strata have been forced, 
we may fairly infer that the first productions of creative wisdom 
were the inhabitants of the sea and the aquatic plants. 

During the early stages of their existence, they were exposed 
to volcanic eruptions, which, by the sudden imparting of heat 
to the water, or by noxious gases or bituminous mud, must have 
destroyed myriads of the inhabitants of the sea, and thus have 
contributed to the rapid formation of the strata where their 
remains are now found, attended with the clearest evidence of 
the manner of their destruction. No small portion of the 
present surface of the earth is formed from the remains of the 
population of the ancient seas, which are heaped up into stu- 
pendous monuments of the work of mortality during the first 
stages of creation. > 

The vegetation of this period was as simple as the contem- 
poraneous classes of animals. The latter, except the fishes, 
were without vertebrae, and the plants were of the simplest 
character, and generally of the cryptogamous order. The 
fossils of the carboniferous period indicate the existence of ferns, 
grasses, plants similar to horse tails, and vascular vegetables 
of a gigantic character, and proving their dcvelopement in a 
climate of much higher temperature than now prevails even in 
the tropics, and in an atmosphere surcharged with carbonic 
acid gas. Their growth would be rapid under such circum- 
stances beyond any idea which can now be formed of vegeta- 
tion ; and the absorption of carbon by the plants from the air, 



262 

would be a process essential to prepare it for the respiration of 
mammiferous animals. 

It would be difficult for one so superficially acquainted with 
geology to describe accurately the different periods when these 
various classes of animals and vegetables occupied the earth. 

It is sufficient to know that marine productions preceded 
those of the land ; and the antiquity of the formations in which 
vegetables of the first periods of creation are found, prove that 
on the land life began in the vegetable kingdom. Above these, 
and sometimes mingled with them, are found the fossil remains 
of birds and quadrupeds. 

In the transition series are found those strata which are de- 
signated as the carboniferous order, or great coal-formaiion. 
The coal strata are formed of carbon, obviously produced I'rom 
the remains of plants of antedeluvian growth. They often con- 
sist of thin layers of vegetable remains, distinctly to be traced 
by the eye. In some mines, by the fall of the coal roof, a dis- 
play is made of vegetable forms impressed upon the stone, 
some of species now extinct, and all bearing marks of the grace 
and beauty which characterize the works of nature. 

A spectator of one of the Bohemian mines, describes them as 
if he had been transported by enchantment into the forests of 
another world. He beholds (as he declares) trees of forms and 
characters now unknown upon the surface of the earth, present- 
ed to his senses almost in the beauty and vigor of their prime- 
val life ; their scaly stems and bending branches, with their 
delicate apparatus of foliage, are all spread forth before him, 
little impaired by the lapse of countless ages, and bearing faith- 
ful records of extinct systems of vegetation which began and 
terminated in times of which these relics are the infallible 
historians. 

The coal strata alternate with indurated clay, sandstone, 
limestone, and strata of rich argillaceous iron ore, or iron stones. 
The limestone beds which form the foundation, are full of the 
remains of marine animals, while the fresh-water shells in the 
upper regions of the series, show that the more recent strata 
were deposited from fresh or brackish water. 



263 

It is also ascertained, tiiat one general principle prevailed 
throughout the successive periods of the secondary and tertiary 
formation, ever operating to maintain upon the earth the great- 
est amount of life consistent with its capacity to supply nutri- 
ment. 

The connection between the vegetable and the insect tribes 
is so constant and immediate, that we may infer that so great 
a mass of plants as that preserved in coal strata must have been 
productive of countless swarms of insects; and the provision 
made for restraining the classes consuming herbs within due 
bounds, through the agency of carnivorous classes, would lead 
us to expect that during this period the latter classes would be 
found of extraordinary power and rapacity. This expectation 
is realized in the fossil remains of the great carnivorous class 
of spiders and scorpions which is found in the coal formation ; — 
fully establishing their existence at that early period, and that 
the vegetation provided for the support of the insect tribes they 
made their prey, must have been abundant beyond any idea 
now entertained of the rapidity of vegetable growth. 

The vegetable remains found in the coal fields appear to have 
been deposited in the vicinity of tracts of dry land containing 
fresh-water lakes and mountains, and to belong to species 
found in climates of high temperature. The strata, although 
in a great degree horizontal, are often arranged in basins, which 
appear to have been gradually filled up by carbonaceous de- 
posits brought by successive tides or floods of water. 

The anthracite, in general, is so completely mineralized, as to 
present no traces of vegetable origin; but in some bituminous 
strata there are found layers of vegetables converted into true 
mineral coal, preserving, when separated, perfect impressions 
of leaves and other parts of plants, and leaving no doubt that 
all coal is derived from the same source. 

It remains for us to inquire how this mass of vegetable mat- 
ter came to be deposited in strata within the reach of man, to 
be preserved as it were for his use and comfort, after the sur- 
face should be stripped by the increased demand of the wood 
which serves for fuel in the early stages of society. 



264 

In hazarding a conjecture concerning a process so enveloped 
in the darkness of antiquity — occurring in a period whose histo- 
ry is preserved only in fossil remains, it would be presumptuous 
to dogmatize. 

It may be permitted, however, to remark, that so large a 
mass of vegetable remains could scarcely be preserved, except 
by some process involving their contemporaneous destruction. 
The successive deposits of plants of periodical growth would 
have been attended with decay and decomposition, which 
would have unfitted them for the purposes to which they are 
now applied. Nor can it be supposed that one annual growth 
of plants upon the surface would suffice to supply a mass equal 
to the strata of coal beneath. 

We must, therefore, infer that the productions of a much 
larger superficies, than the extent of the coal field, have been 
brought together by some agent, and that the deposit has then ta- 
ken place. From the position of the vegetable remains and their 
perfect preservation, we may fairly conclude that they have 
been collected through the agency of water; and it is not un- 
reasonable to infer, that the same fluid that held them in a state 
of suspension, acted as a current in tearing them from the sur- 
face of the globe. That such a current has at some former 
period swept over the earth with stupendous force, we have 
too many proofs to permit us to doubt. It is equally clear that 
this current has flowed from east to west, excavating the val- 
leys which run through the chains of lofty mountains — scooping 
out the deep gulfs and bays, and dividing the islands from the 
adjacent continents; that it has ploughed up the channels of the 
Red Sea and Mediterranean in its mighty eifort to find a pas- 
sage between Africa and Asia, while the great indentation 
formed by the Gulf of Mexico attests the action of the same 
current in its endeavour to divide South from North America. 
Other proofs might be accumulated as to the existence and 
course of this current, but my limits compel me to make a sug- 
gestion as to its cause. 

It will be readily conceded, that upon the approach of any 
large body to the earth, a strong influence would be exerted 



265 

upon the fluid parts of this planet by the attractive power of 
the approximating body. 

In the case of the tides, that influence is now daily manifested 
by the heaping up of the waters on that side of the earth next 
to the moon, and a similar result is produced at the antipodes. 
When the sun and moon are on the same side of the earth, the 
effect is increased, and when they are in opposition, it is di- 
minished. A nearer approach of a smaller heavenly body 
would produce a greater effect, and this influence would be 
augmented in proportion to the diminution of the distance. By 
the near approach of one of these bodies, as of a comet, 
the water would be heaped up on that side, by the force of 
attraction, to the height of several thousand feet ; and being 
held there by that power, the earth, by revolving on her axis, 
would pass its surface through this heap of water, and thus 
create a current moving from east to west of nearly a thousand 
miles an hour. Such a current, as we may readily imagine, 
would strip the surface, not only of the plants, but would plough 
up the soil itself, mixing the whole in chaotic confusion. 

A current like this is a sufficiently powerful agent to have 
produced most of the extraordinary changes upon the face of 
the earth, which have baffled the skill of many geological ob- 
servers. We need no longer wonder that rocks of gigantic 
size are found transported to great distance from their primitive 
seats ; we need not wonder that the two great continents are 
nearly severed by the force of the diluvian tides ; we need not 
perplex our imaginations to find out a cause for the appearance 
of the southeastern shores of the two great continents, vehich 
look as if the current, as it subsided, had worn away the solid 
shores almost to points. 

Skepticism can here find not only evidence of a deluge, but 
a cause powerful enough to produce one. With these proofs 
of the existence, in former days, of mighty diluvian currents 
sweeping over the earth, from east to west ; with the tradition 
of a great deluge recorded in sacred writ ; it is not a little re- 
markable that circumstances to which I am about to allude 
strongly tend to show, that the most extraordinary comet that 

34 



266 

has appeared in the days of modern astronomy, must have been, 
about the time ordinarily assigned for the Mosaic deluge, within 
the limits of our solar system. I refer to the comet of 1680, a lu- 
minary of remarkable size, with a train extending from the 
zenith to the horizon, and illuminating the whole heavens with 
its light, and which at the time of its appearance perplexed all 
Europe with supernatural fears. 

The orbit of this comet was calculated by Halley, and the 
time of its periodical return was found to be from 575 to 576 
years. Modern history has verified the accuracy of this calcu- 
lation, by recording the appearances of this comet in former 
times, i. e. in 1106, in 531, and again forty-four years before 
Christ, at the time of the death of Cassar. 

An anterior appearance of a remarkable comet is recorded 
in the Sibylline books, as occurring in the year 618, or 574 
years before the one above mentioned. Here authentic history 
is silent; but in the year 1193, or shortly after the siege of Troy, 
Grecian mythology informs us, that one of the Pleiades, unable 
to witness the misfortunes of that city, abandoned the zodiac, 
and fled to conceal herself at the pole, with disheveled hair ; 
and that, at a fitting period, she would return to affright man- 
kind. This fable plainly alludes to a remarkable comet, and 
its appearance at that era being the ascertained time for the 
return of the comet of Halley, justifies us in concluding that it 
refers to that comet. Another fable of Arabic origin indicates 
a still earlier appearance of this wandering star. According 
to their historians, the star Canope or Sokiel had espoused the 
constellation Orion, whom the Arabians designate as a female. 
By some misadventure, Canope wounded his wife ; and, over- 
come with grief, he abandoned his place in the zodiac, and 
traversing the heavenly field, hid himself near the southern pole. 

This fable is represented as occurring in 1706 before the 
Christian era, or 574 years before the disappearance of the 
lost Pleiad ; and the next anterior periodical return of this ex- 
traordinary comet would carry it back to the era ordinarily 
assigned for the Mosaic deluge. It may certainly be, that these 
two events have no connection with each other. The chro- 



267 

nology of the deluge is not very correctly ascertained, nor is 
the periodical return of this comet to be regarded as fixed 
within one or more years. Stars with such eccentric orbits, 
and traversing such immense regions of space, are liable to be 
affected in their course by the attraction of the planets whose 
orbits they pass, and by other influence beyond the limits of our 
solar system. 

Still, with all these allowances, the coincidence is remarkable, 
and the results, which must have been caused by such an ap- 
proximation, and of which the evidences are to be found in 
every coal bed, in all our valleys, in the deep gulfs and bays, 
and in the shape of the continents, afford some reason to con- 
clude that this coincidence did occur, and that it was intended 
to accomplish the great purposes of infinite wisdom. Whether 
this conjecture as to the cause of the universal deluge be well 
founded or not, is not, however, so important to my present 
purpose. Other evidence exists, presenting the strongest in- 
ternal force, that such a deluge did occur, and that it was 
accompanied with a current of the character here described. 

In subsiding, it would happen that, as the earth passed 
through the heap of waters, the large basins formed by the 
great north and south ranges of mountains would be filled with 
water surcharged with mineral and vegetable deposits, which 
would fall to the bottom of these basins, as the waters flowed 
off through the valleys and lower declivities of the mountain 
ridges. Time would be afforded after the great diluvial tide 
had passed, before the revolution of the earth again filled the 
basin, for a large quantity of the water to run off, and for 
masses of matter, held in suspension, to be deposited ; the 
heavier particles falling first, and the vegetable remains, satu- 
rated with mineral and bituminous substances, next. Another 
and another tide following, another and another series of de- 
posits would be made, until the cause of the high diluvial tides, 
passing beyond the influence of attraction, the agitation of the 
ocean would cease, and the deposits would begin to assume 
consistency and solidity, and to form part of the outer strata of 
the earth. 



268 

The important uses of coal, in administering to the wants of 
society, give to us all a direct interest in the geological events 
of those early stages of creation. The most ancient period to 
which its origin can be traced, was among the swamps and 
marshes of the primeval earth, where it existed in the form of 
stately ferns and gigantic plants of the cryptogamous class. We 
next find it torn from the surface of the mighty diluvian current 
that swept over the earth, mingling its vegetable productions 
in chaotic disorder, with all the looser portions of its surface. 

Upon the subsiding of the flood, these plants sunk, saturated, 
to the bottom of their present basins; and, after a long course 
of ages and chemical changes, they became converted into en- 
during beds of coal, which, in these latter days, have proved 
the sources of heat, and light, and wealth to the human race. 
It converts the barren stone into a metal that gives to man the 
mastery over all the elements which form the materials of his 
mechanical industry. It is in the mill, and in the workshop. 
It warms his domestic hearth, and prepares his food. It spins, 
it weaves, it ploughs, it prints, it carries, it draws, it lifts, it for- 
ges. In the form of gas, it furnishes his apartments with bril- 
liant light, and gives a respite to the persecuted leviathan of the 
deep. It takes the road ; and the iron horse, with centuple 
force, dashes by with a train of enormous weight, and with a 
speed which outstrips the fleetest race-horse. It appears upon 
the water; sails are furled, the boatman reposes on his oars, and 
the rivers and lakes are made to convey passengers and their 
goods with certainty and speed. The current of the Mississippi 
is no longer an obstacle to the ascending trade of that fertile 
valley. The ocean is no more faithless and uncertain. It has 
been bridged by steam, and the force of the waves and the 
power of the storm, terrible as they have been throughout time 
to those who go down in ships to the great deep, are shorn of 
their terrors, and deprived of their destroying energy, by the 
power created by this useful material. 

Among the most remarkable coal fields, or basins, we may 
class that formed between the Alleghany and Rocky Mountains, 
and drained by the Mississippi; and it would be diflicult to 



269 

imagine any large tract where the shape of the country is 
better calculated for the preservation of large diluvial deposits, 
of the carboniferous order, than the great valley lying west of 
the Alleghany Mountains. 

From the superficial examination which has been bestowed 
upon this coal field, and the numerous specimens of coal found 
in all directions, we may safely conclude that there is stored up, 
in that region, a greater mass of fuel, in the concentrated form 
of coal, than is to be found in all Europe ; probably greater 
than is afforded in all other parts of the ancient world. 

In Great Britain, (distinguished as that island has been for 
mineral riches, and great as have been the effects resulting from 
their developement,) inconsiderable, indeed, are the carboni- 
ferous deposits, when compared with those which break 
through the eastern face of the Alleghanies, on the Susquehanna, 
and spread themselves in one broad field of mineral wealth 
through the immense valleys of the Ohio and Mississippi. 

The coal fields are found in almost every part of this vast 
tract of country. They exist in Alabama. In Virginia they 
have been worked for many years. In Cumberland, on the 
Potomac, extensive mines of bituminous coal are found near 
the Chesapeake canal, which have lately commanded great 
attention. At Blosburgh, in Tioga county, a large mine is now 
worked, from which the Erie Canal boats are receiving 200 
tons per day. At Tonawanda, on the east side of the same 
mountain, there are coal strata, which I have examined, five 
feet thick, and which are worked for the use of the vicinity. 
Other mines are found in Jefferson and Clearfield counties, near 
Olean, which seem to be provided for the supply of the western 
part of this state. It is, however, on the western side of the 
Alleghany range, that the great coal field is to be found. There 
it extends in broad and almost uninterrupted strata, as if the 
great mass of vegetable remains of the antediluvian world had 
been swept before the mighty current, until they found a shelter 
in the eddies formed by the projecting ridge of the Alleghanies, 
and were there stored up for the use of the enterprising people 
now occupying this highly favoured country. 



270 

The field of bituminous coal is not even now fully explored. 
It is, however, found almost everywhere, and generally easy of 
access ; often in mountains, and so situated that the mines can 
be drained without machinery into the natural water-courses of 
the country. 

It has not yet been discovered in New- York, nor in New- 
England ; but the examinations there have not been sufficiently 
exact to warrant the conclusion that those states are without 
coal deposits ; and the appearance of the carboniferous strata 
in Nova Scotia, where coal of excellent quality is obtained from 
the Sidney and Pictou mines, affords strong evidence that the 
causes which produced the great Alleghany coal field operated 
over the whole tract of country, from Alabama to Cape 
Breton. 

In Rhode Island and in Massachusetts, near Worcester and 
Taunton, anthracite coal is found ; and although this species of 
coal is more completely mineralized, it is obviously produced 
by similar causes. The great anthracite coal beds of Pennsyl- 
vania appear to the east of the great bituminous coal field, and 
afford some ground to believe that the great coal strata on the 
eastern side were first formed, and being less protected from 
the current, became more completely mineralized. Hitherto 
the anthracite coal, being of more easy access, has come into 
more general use ; and the rapid increase of that trade is a 
striking proof of the growing importance of this branch of 
national industry. 

In 1820, this article was first made known; and 365 tons 
were brought to market. In 1826, the consumption had in- 
creased to 48,000 tons; and last year it was augmented to 
845,000 tons. 

The bituminous coal business has scarcely yet commenced. 
In Virginia, it is true that bituminous mines were long since 
opened ; but the trade has been carried on in an easy, careless, 
unenterprising manner, so characteristic of that venerable com- 
monwealth, that we can scarcely wonder that it has grown 
into the currency of a proverb, that " Old Virginny never tires." 
The sensation of fatigue is rather produced in the observer of 
her movements. 



271 

The amount of bituminous coal consumed in the west, at 
Pittsburgh and other places, is great ; but the source of supply 
is so near at hand, that it can scarcely be yet enumerated among 
the branches of internal trade. 

In this state the business has been lately commenced. A 
rail-road forty miles in length was recently completed, connect- 
ing the Chemung Canal at Corning with the Blosburg mines in 
Pennsylvania. When I was there, in August last, the rail-road 
was just put in operation ; the wharf, where the coal was trans- 
ferred from the cars to the canal boats, was not finished ; the 
streets of a future city were still crowded with stumps and the 
trees of the forest; the work, however, was going on with vigour; 
stores and dwelling-houses were building; a church and school- 
house, and an iron foundry, were completed. The locomotives, 
with their trains of coal cars, were arriving twice a day, bring- 
ing 100 tons of coal to be discharged into the canal boats, and 
the men were then employed in landing another locomotive, in 
order to increase the force on the road.* 

In this enterprise might be plainly traced the commencement 
of a new internal trade of great importance. On the north- 
western base of the Alleghany bordering on the Erie rail-road, 
and approaching near to the termination of the Genesee valley, 
the Chemung and Chenango Canals, are bituminous coal mines, 



* At Blosburg, there are several coal companies, all of whom are entitled to use 
the road ; each coal company furnishing its own cars, brake-men, &c., and the rail- 
road company furnishing the road and motive power. The Arbon Coal Company 
has made four drifts into the mountain, each of sufficient capacity to yield 250 tons 
daily. It has also 100 coal cars, each carrying 3j tons. Already 230 tons have 
been delivered in one day, and the force employed there is constantly increasing. 
The weight of the Blosburg coal is as follows ; 

Density. Weight per cubic yard. 
Tons. lbs. 

Johnson Run, 1493 .... 1.. 0280 

BearCreek, 1000 .... 1.. 0122 

NewHopeRun, 1429 .... 1.. 0173 

CoolRun, 1371 .... 1 .. 0073 

It contains 75.4 per cent, carbon, 
16.4 " bitumen, 
8.3 " aslies and earthy matter. 



272 

which are of indescribable importance to this state. In those 
mines, the coal strata alternate with limestone, fire clay, and 
iron stone, in layers. Here are destined to be great iron works, 
upon which we must mainly rely for our supply of that great 
necessary of life. 

The demand for iron is daily increasing, and that so rapidly, 
as to make it difficult to say from what quarter the demand can 
be supplied. 

In 174D, the amount of iron made in England and Wales 
was but 17,000 tons. In 1796, it had increased to 125,000 
tons ; and when, in 1820, it had increased to 400,000, and in 
1830 to 700,000 tons, some doubt began to be expressed 
whether the sources of this enormous supply might not be ex- 
hausted. What must be the apprehension of these doubters 
when they find the annual consumption more than doubled, it 
having last year come up to the enormous amount of 1,512,000 
tons ! In France, it amounted to 600,000 tons, and the total 
amount made in Europe was 3,000,000 tons. In the United 
States, the amount now made annually is about 250,000 tons ; 
and it is fast increasing. 

It is in reference to iron that the consideration of this topic 
becomes extremely interesting in a national point of view. 
The yearly importation of iron into the United States, in bars 
or pigs, or in massive articles, amounts to near $5,000,000, and 
the manufactured articles on that material, to a much larger 
sum. Nearly 6400,000 are required for our rail-roads, and the 
demand from that quarter must increase. But our attention is 
scarcely directed to that subject. We have been too much 
occupied with commerce and agriculture. We have just begun 
to inquire into our mineral wealth ; and already a process has 
been discovered, by which anthracite coal is used in smelting 
iron, and its cost of production is reduced 40 per cent. ; and we 
are enabled to use pig iron of greater weight as a substitute for 
bar iron for rail-roads. 

Those acquainted with the subject assert, that in the Cumber- 
land district the facilities for manufacturing iron with bitumi- 
nous coal are so great, that it can be afforded for from $12 to 
$ 15 per ton, or much less than the price of iron in Europe. 



273 

The bituminous coal in the United States, except the Vir- 
ginia and Ohio, is much heavier than that of Europe. The 
Blosburg, the Pennsylvania, and the Tennessee coal, all exceed 
in weight a ton to the cubic yard; and that in Bedford county 
(Penn.) exceeds it by 629 lbs. 

None of the European coals weigh a ton. Tlie anthracite, 
too, are all heavier than those of Europe. 

With coal of so excellent a quality, and so abundant in quan- 
tity, a new feature is developed in the character and resources 
of the United States. Imagination can scarcely grasp the ex- 
tent of power and prosperity to which this republic is destined 
to advance. 

When wc consider how much has been achieved by England, 
by the action of coal upon iron and steam ; when we reflect 
that machinery equivalent to the labour of nearly 400,000,000 
men is now moved in that country by its agency ; that 
through that labour she maintained her fleets and armies, 
and was enabled for a quaj-ter of a century to withstand the 
united energies of revolutionary France, backed by her depend- 
ent continental allies, and directed by the genius oi' Napoleon, 
and finally to plant the red cross in triumph upon the walls of 
Paris, and to dictate the terms of peace to Europe ; — when we 
look at the importance of that little island among civilized pow- 
ers, at the influence she has exerted and is exerting upon the world, 
and perceive how much of that power is owing to the wealth 
created by the combined force of coal, iron, and steam, we are 
amazed at its influence upon the fortunes and destinies of man- 
kind. 

In this country that influence is beginning to exert itself; 
and we have ill read the signs of the times, if it is not destined 
to exert a mighty force upon the fortunes of the United States. 
The internal improvement of the country; the providing the 
means of bringing its produce to market, and of intercommu- 
nication between difterent portions of the Union ; the advance- 
ment of the manufacturing arts; the developementofits resources, 
all depend upon the combined influence of these important 

agents; and if we would promote the permanent improvement 

35 



274 

ofour species, no better mode can be devised than to encourage, 
by all proper means, the working ofour coal and iron mines. 
Under a judicious and economical system, we may then see 
the great channels of intercommunication between the states 
furnished with the improved modes of intercourse ; the distant 
parts of the Union really made one country, by bringing tliem 
with.in a few days' travel ; the arts and sciences of the old 
world transported to the new; our machinery increased and 
perfected, until its power is equivalent to that of England ; and 
the country rich and prosperous, and, under the guidance of 
patriotism and intelligence, moving onward in that career of 
glory and greatness, which is marked out as it were by the finger 
of Divine Providence. 



ARGUMENT 

IN THE SUPREME COURT OF THE UNITED STATES, JANUARY 

TERM, 1837. 



The Mayor, &c., of the City of New- York, 

vs. 
George Miln. 



This suit was brought to recover certain penalties incurred 
under the Act of the State of New York, passed February 
11, 1821, commonly known as the Passenger Law. The 
constitutionality of the law came in question, and the judges 
of the New York Circuit certified a division of opinion, up- 
on which the question came up. The appeal was argued 
in 1831 by David B. Ogden, for the plaintiff, and Messrs. 
White & Jones, for the defendant; but the court having 
only five judges present, and a majority of the whole court 
not concurring in opinion, a re-argument was ordered. The 
case was again argued in 1837, before the whole court, by 
the same counsel and Mr. Blunt, who was employed by 
the City of New York to open the argument. 

Mr. Blunt, for the plaintiff, contended that the law in 
question was constitutional. The case he said was not with- 
out difficulty ; indeed, the very hesitation of a court con- 
stituted as this was, admonished him of the doubts and dif- 
ficulties attending the solution of the question. 

The law was one peculiar to this country, and it grew 
out of circumstances also peculiar to this country. The 
emigration to the United States since the American revo- 
lution, was unprecedented in history, not merely in num- 
bers, but in its character. It was not a military coloniza- 
Kk 



276 

tion, lilce the Greek and Roman colonies; nor was it mer- 
cantile, like the East India and American colonies of mod- 
ern Europe. Neitlier did it resemble the emigration of the 
Moors from Spain, or the Huguenots from France. It was 
a constant and steady migration of civilized Europeans to 
an independent country, controlled by a civilized people. 
This migration was peculiar to the United States, and we 
cannot find legal analogies in other countries. That migra- 
tion has now reached the amount of sixty thousand five 
hundred yearly, into the port of New -York alone. 

It was obvious that laws were needed to regulate such a 
migration ; and the Atlantic states, generally, have passed 
such laws : and the law in question, is that of New York, 
providing that masters of vessels bringing passengers to 
that port, who have no legal settlement in the state, shall 
give bonds to the city to indemnify it for three years from 
all charges on account of their maintenance. It also pro- 
vides for a report to the mayor of the names, &c. of the pas- 
sengers, and inflicts a penalty for a violation of the law. 

At the previous argument, the defendant contended that 
this was a regulation of commerce, and that the j)ower to 
regulate commerce was exclusively vested in congress, and 
hence that this law passed by a state was unconstitutional. 

We do not admit this law to be a regulation of commerce; 
but conceding, for the sake of the argument it to be so, it 
does not follow that it is unconstitutional. 

Because congress has the power to regulate commerce, it 
is not a consequence that it is an exclusive power. 

Powers granted to congress are exclusive only — 

1st. AVhen granted in terms expressly exclusive. 

2d. "When the states are prohibited from exercising it. 

3d. When exclusive in its nature. 

This power clearly does not fall under the first nor sec- 
ond class. 

Does it under the third class ? 



277 

Mr. Blunt contended that a legislative power is exclu- 
sive in its nature, only when its existence in another body 
would be repugnant to, and incompatible with its exercise 
by congress. 

Not that its exercise by a state legislature would be in- 
compatible with its exercise by congress. That is a con- 
flict between concurrent or co-ordinate powers; and where 
that takes place, we concede the federal power is supreme. 

A power exclusive in its nature, must be such that the 
states can pass no law upon the subject without violating 
the constitution. Federalist, No. 32 ; 5 Wheat. 49; 1 Story 
on Cons. Law, 432. 

Concurrent powers are of two classes : 

1st. Where any federal legislation covers the whole 
ground, and exhausts the subject: as fixing the standard 
of weights and measures. Here, after congress has legis- 
lated, the power of the states is at an end. 

2d. Where the power may be exercised in different 
modes, or on different subjects; or where the object admits 
of various independent regulations operating together. 

In these cases the concurrent laws are all in force,- and 
the state law is void only so far as it conflicts with the law of 
congress. 

The 2d section of 6th article of the constitution, pro- 
viding that the laws of congress made pursuant to the con- 
stitution shall be the supreme law of the land, proves that 
this species of concurrent legislation was contemplated. 
This Court has sanctioned this view of the subject, 4 Wheat. 
122. 196; 5 lb. 49; 9 lb. 200. 

In the case of Saunders v. Oerden, it was decided that a 
bankrupt law passed by a state was valid, until it conflicted 
with federal legislation. 

Mr. Blunt, contended that the case of Gibbons v. Ogden, 
did not touch the case before the Court. 

1st. Because, there the power to regulate commerce was 



278 

regarded as exclusive only so far as it regulated the com- 
merce of the United States as a whole. 

2d. Because, there the question decided by the Court 
was whether a state could regulate commerce, while con- 
gress was regulating it. 9 Wheat. 200. 

3d. Because it was expressly said in that case by the 
Court, that it was never intended to deny to the states all 
legislation which might affect commerce. lb. 204. 

That decision therefore does not touch the point, and the 
Court is now called upon to go farther, and declare all state 
laws affecting commerce void. 

This is the extent of defendant's doctrine. 

There is here no conflict of concurrent laws. 

Congress has passed no law conflicting with this law. 

The acts of 1779, March 2d, and of 1819, March 2, cited 
by the defendant's counsel in the former argument, are for 
altogether different purposes. 

The first is a revenue law, and the provisions relating to 
passengers are confined entirely to the entering and land- 
ing of baggage, and they are intended to prevent smuggling. 

The second is intended to prevent the cupidity of mas- 
ters and owners from crowding their ships with passengers, 
and to compel them to provide a sufficient quantity of wa- 
ter and provisions. 

The treaties with Brazil, and Austria, and Prussia, cited 
by the defendant, are equally inapplicable. They merely 
secure freedom of commerce and intercourse to the subjects 
of those countries, they conforming to the laws of this coun- 
try. This law was then in existence, and the exception pro- 
vides for the execution of all such laws. 

Besides, the defendant here does not appear to be a sub- 
ject of either of those powers; and of course cannot claim 
anything on account of those treaties, even if they were ap- 
plicable to the case. 

We do not deny that in regulating commerce the power 



279 

of congress is supreme, and it may be regulated eitter -un- 
der that power, or under the treaty-making power. Until 
that be done, and the conflict occur, the state law is valid. 
Such are the doctrines of this Court, and of the ablest ju- 
rists. 1 Story, Cons. Law, 433. "Congress may make that 
a regulation of commerce, which a state may employ as a 
guard of its internal policy, or to promote its own peculiar 
interests." 

"If the power to regulate commerce be exclusive, still 
the legislation of a state acting on subjects within the reach 
of other powers, besides that of regulating commerce, would 
be constitutional." 2 Story, Cons, Law, 517. 

In order to decide the cause for the defendant, the Court 
must come to the conclusion, that the power regulating 
commerce is so exclusive, that all state laws affecting or 
regulating commerce are necessarily void, even where no 
conflict exists. 

This is beyond any former decision, and we think the 
Court will not adopt such a conclusion — • 

1st. Because it is a case where power is claimed by im- 
plication, and it is not sufficient to show a possibility of in. 
convenience. All such cases too are decided upon their 
own grounds. 

2d, It is a question of power, and the Court wall require 
most convincing arguments before denying it to the states. 

3d. Such a construction is not necessary to reconcile 
former decisions. 

4th, The regulation of passengers was productive of no 
conflicting legislation under the old confederation. It was 
not the evil to be remedied, when the power to regulate 
commerce was given to congress. Supremacy of federal 
law is a sufficient remedy, and the Court will not imply 
power farther than necessary. 

5th. This construction would throw upon congress a 
mass of legislation which it could not perform ; and the 



280 

tendency to alienation from the federal government would 
be increased by its incompetency to perform its duties. 

Among the laws affecting commerce are the laws regu- 
lating the discharge of ballast; the harbor regulations ; the 
pilot laws of the states ; the health laws ; the laws of police 
as to the conduct of crews of vessels while in port ; and a 
class of laws peculiar to the Southern States, prohibiting 
trafl&c with slaves, and prohibiting masters of vessels from 
bringing people of color in their vessels, of which I subjoin 
a reference. Such is the mass of legislation which must be 
abrogated by such a decision. 

But when we look at the course of commerce with for- 
eign countries, at the commencement, the progress, and 
the conclusion of a voyage, it is difficult to estimate the 
extent to which such a conclusion must lead the Court. 
The merchandise' that is sent abroad is purchased in the in- 
terior, and bills of exchange on the northern cities, and on 
Europe, given for it. The merchandise that is brought 
home on the return voyage, is often kept in the original 
package, and is transported from state to state, with bene- 
fit of drawback, until it is again shipped for a foreign mar- 
ket. How much of this falls within the power to regulate 
commerce with foreign states ; and if exclusive, how much 
must be withdrawn from state legislation ? 

There is no criterion furnished by referring to the place 
where the business is transacted, and by declaring that all 
transacted within the country falls within state jurisdiction, 
and the residue within federal juridiction. The shipping 
of sailors is within the country, and that is regulated by 
congress ; and so is their discharge and enforcement of the 
contract. On the other hand, pilotage, a contract com- 
menced upon the ocean, is regulated by state laws. 

Again, if the power to regulate commerce with foreign 
states be exclusive, that of regulating commerce between 
the states is exclusive also. Both powers are conferred in 
the same terms, and in the same clause. 



281 

Apply the construction contended for by the defendant, 
and the legisiative power of the state is at an end They 
become mere municipal corporations ; and all legislation 
relative to commerce, the great business of the country, 
becomes exclusively vested in congress. Under this head 
of the argument, therefore, we conclude that, conceding 
the passenger law to be a commercial regulation, the states 
have a power concurrent with congress to legislate, but sub- 
ject to the controlling power of congress, 

2d. The law is not a commercial regulation in the sense 
contemplated in the constitution ; but a police regulation. 
It is a part of the system of poor-laws, and intended to 
prevent the introduction of foreign paupers. This power 
of determining how and when strangers are to be admitted, 
is inherent in all communities. 2 Ruth. Inst. 476, 

Fathers of families, officers of colleges, and the authori- 
ties of walled cities, all have this power as an incident of 
police. In states it is a high sovereign power. It belonged 
to the states before the adoption of the federal constitution. 
It is nowhere relinquished ; nor can it be with safety. It 
is essential to the very existence of some, and to the pros- 
perity and tranquillity of all. That it was not intended to 
relinquish it, we infer — 

1st. Because it was not prohibited to the states. 

2d. Because it is not expressly granted to congress, but 
only as an incident to other powers ; as the war-power, 
the treaty-making power, or the power to regulate com- 
merce. It may also be used by the states as a police regu- 
lation, as part of the system of poor-laws, or to promote 
internal tranquillity. But because it is an incident to some 
of the federal powers, it can never be pretended that it is 
necessarily prohibited to the states. 

3d. Because the sec. 9, art. 1, of constitution concedes, in 
so many words, that the states have this power, and imposes 
a restriction upon the concurrent power of congress, until 
1808. 



282 

It declares that "the migration or importation of sucli 
persons as any of the states, now existing, shall think pro- 
per to admit, shall not be prohibited by congress prior to 
1808." What is the meaning of the words, " the states shall 
think proper to admit?" States can only think through 
their laws. Legislation is the thought of states. The very 
phrase shows, that the states reserved the power to admit, or 
prohibit; and consequently to regulate the admission. The 
power of congress is suspended until 1808; but the power 
of the states remains as before the constitution. Did the 
arrival of the year 1808 extinguish that power in the states? 
Such a construction will hardly be contended for. After 
that year congress is enabled to exercise one of the inci- 
dents to its powers, which before it was prohibited to do- 
It must exercise it, however, as a concurrent power, and 
supreme when conflicting. Supposing congress had not 
chosen to pass any laws on this subject after 1808, would 
the state laws necessarily be abrogated by the arrival of 
that year? Would the laws passed by the states abolish- 
ing the slave-trade before 1808, have been repealed? Such 
must be the conclusion, if the power be exclusive in its own 
nature. 

Again, if the power to pass laws regulating the admission 
of passengers from Europe, fall under the power of regulat- 
ing foreign commerce, that of regulating the arrival of pas- 
sengers by land, falls under the power of regulating com- 
merce between the states. If the one be exclusive, the 
other is exclusive; and all vagrant-laws, all poor-laws, and 
police regulations, become, at once, solely of federal juris- 
diction. The laws of the southern states in relation to the 
intercourse and trafl&c with slaves, and to the introduction 
of colored persons into those states, also become the sub- 
jects of federal jurisdiction, and the state laws are abrogat- 
ed. Here the counsel examined the character of those laws; 
and concluded by observing, that although he must not be 



283 

understood as approving of the peculiar provisions of those 
laws, still it was obvious that some legislation was neces- 
sary in reference to that population, and that the states 
clearly had the power to pass such laws. 

The poor-laws, providing for sending back paupers to 
their place of settlement, in the adjoining counties of a bor- 
dering state, will share the same fate; and congress will 
have to provide a national system of poor-laws. 

In our view, the law in question is altogether a police 
regulation: as much so as laws prohibiting entrance into 
a walled city after dark; laws prohibiting masters from 
bringing convicts into the state ; or the laws prohibiting 
free negroes from being introduced among slaves. 

The history of this law also throws some light upon its 
constitutionality. The federal constitution was adopted by 
nine states — the constitutional number in 1788; and on the 
13th of September, of that year, a resolution was adopted 
by the old continental congress, announcing that fact; di- 
recting presidential electors to be chosen, and fixing the 
4th of March, 1789, for the commencement of the new gov- 
ernment. Three days afterwards, on the 16th of Septem- 
ber, the same body unanimously adopted a resolution, re- 
commending to the several states to pass proper laws for 
preventing the transportation of convicted malefactors from 
foreign countries into the United States, When this reso- 
lution, so directly bearing upon the point in question, was 
adopted, there were present, Dana, the profound and en- 
lightened jurist and framer of the government of the North- 
west Territory; Gilman, Williamson, Fox, and Baldwin, 
members of the convention which formed the federal con- 
stitution; Hamilton and Madison, also members of that con- 
vention, and the eloquent expounders of that instrument. 

Jay, the third expounder, and the first Chief Justice of 
this Court, was the secretary of foreign affairs, and, no doubt, 
recommended the passage of this law. If any contempora- 

Ll 



284 

nsous autlioritj is entitled to respect, here was one of the 
highest character. A resolution, at the very moment the 
new government was going into operation, recommending 
to the states to pass thetrC laws, as peculiarly within their 
province. 

Under that resolution, the states acted. November 13th, 
1788, Virginia passed a law forbidding masters of vest^els 
from Icindiiig convicts, under a penalty of fifty pounds. 
South Carolina and Georgia' passed passenger-laws the 
same year. New Ilump.shire passi'd a passenger-law in 
1791. Massachusetts, in 1794 The New York passenger- 
law was first passed 7th March, 1788, and has been re- 
enacted, with some modific.itions, at each subsequent revi- 
sion of her laws. 

The resolution of congress extends to the very point in 
dis])ute. Tf the admission of convicts may be prohibited, 
the admission of all passengers may be regulated. 1"he 
same rule :s applicable to the admission of paupers, as to 
convicts. This will not be denied. 

The defendant's counsel asserted, in the former argu- 
ment, that the laws of 1799 and 1819, have regulated this 
mtercourse. 

"We deny it. Those laws were for other objects. It is 
not true that a person conforming to those laws, may im- 
port passengers in spite of state laws; because the laws of 
1799 and 1819, were all the regulations that congress 
thought necessary. 

A state law is not necessarily void, because persons vio- 
lating it, are acting in conformity with an act of congress. 
Even in such cases, states acting under other powers may 
control individuals acting in conformity with laws of the 
federal government, 

A man may obtain a patent for making and vending a 
medicine ; and a state may prohibit its sale. He may obtain 
a copy -right for publishing a book; and the state may pun- 



285 

isli him because it is libellous. A merchant may import 
gunpowder, or Chinese crackers, pursuant to the revenue 
laws; and the state of New York may prohibit the former 
from being landed, and the other from being sold in the 
city. He may also bring passengers, pursuant to the above- 
mentioned laws; and the legislature may compel him to 
give security that they will not become a public charge. 

We therefore contend, that the power to regulate com- 
merce is not exclusively in congress, but concurrent in the 
states; and that state laws are valid, unless conflicting, and 
only void where repugnant. 

2d. That the law in question is merely a police regula- 
tion, and not a regulation of commerce, in the sense of the 
constitution. 

od. That the power over this species of intercourse is 
vested in congress only; is incident to other powers, and 
not in any sense exclusive. 

4th. That the law of New York is not repugnant to any 
existing treaties or laws of congress, and is therefore valid. 

Such a conclusion produces no inconvenience ; but, on 
the contrary, promotes a public good. It vests power 
where there is an inducement to exercise it. In congress, 
there is no such inducement. The west seeks to encour- 
age emigration; and it is but of little importance to them, 
how many of the crowd are left as a burden upon the city 
of New York. There is, therefore, a hostile princij'le in 
congress to regulating this local evil. A construction that 
would vest this power exclusively there, would be contra- 
ry to the general design of our government; which is to 
entrust the care of local interests to local autlioiities; and 
only to congress, when necessary to the national welfare. 

We trust that this Court will not make a decision that, by 
absorbing so large a portion of state legislation in a power 
to regulate commerce, deemed exclusive by inference, will 
tend 10 weaken the authorit}^ of this Court, and shake the 



286 

stability of the government; but tbat, according to the de- 
sign of the constitution, in conformity with its history, and 
in accordance with its own decisions and principles of in- 
terpretation, that it will decide that the states had power 
to pass such laws until 180S, without control; and after 
1808, they had a concurrent power, subject to the control 
of congress ; and that, until conflicting with federal laws, 
the law is valid and in force. 



DEDICATORY ADDRESS 

OP 

LOG CABIN, June 17, 1840. 



The humble edifice which we have this day assembled to 
dedicate to public purposes, is a happy illustration as well 
of the history of the simple, laborious, and primitive men 
who founded the colonies which now form this great and 
powerful confederacy, as of the interests upon which our 
political institutions rest, and upon whose support their 
very existence depends. 

These rude and unadorned walls forcibly remind us of 
the period when civilized man first landed upon these shores, 
and looking round upon the wilderness, found no readier 
means of providing a shelter, than was presented by the 
trees of the untouched forest. They carry us back to pri- 
mitive times — to the days when men looked to principle, to 
religion, and truth, as things of reality, for which they were 
ready to sacrifice their comfort, and, if necessary, their lives. 

They recall, too, to our memory, that critical moment 
when the Whigs of 76, outnumbered and beaten back by 
the minions of Executive power, retreated to Valley Forge, 
and awaited in their Log Cabins the moment when the 
awakened and rallying energies of the American people 
should afford them an opportunity to re-establish them in 
the enjoyment of their constitutional rights. 

And now at the present day they bring with them asso- 
ciations of the enterprising and industrious pioneers of civil- 
ization who are engaged in different sections of our widely 



/ 288 

extended Union, in rendering an uncultivated wilderness 
subservient to the uses of civilized man. They bring be- 
fore us the inmates of these humble dwellings from all 
parts of our national domain, whether occupying the old 
log cabin erected by their ancestors, and in the midst of or- 
chards and fields cultivated for generations, or cabins just 
completed by the new settlers in the wilderness. Fi'om 
the pine forests of New England even to the verge of the 
disputed boundary ; from the verdant and sequestered val- 
leys of the Green Mountains ; from the broad steppes of the 
Alleghanies; from the great western wilderness, where the 
sound of the woodman's axe is but just heard, breaking the 
primeval silence, and proclaiming to the hoary monarch of 
the forest, that the reign of soiltude and ignorance is at an 
end, and that man, civilization, and Christianity, accompa- 
nied by free and equal institutions, are advancing to take 
possession of this rich inheritance. From these distant re- 
gions the hardy cultivators of the soil are thus brought be- 
fore us, and reassure us as to the stability of our political 
institutions, when we reflect that they rest upon their un- 
sophisticated affections, and are defended by their sinewy 
arms. From this hardy class, who have contributed so 
largely to the prosperity of the country ; the Wliig party 
has selected, as a candidate for the Presidency, a man who 
stands among the settlers of the wilderness foremost, as well 
for his valor in defending it against savage and civilized 
foes; as for his wisdom in devising, and his ability in admi- 
nistering a system of measures for its settlement and gov- 
ernment during its unexampled progress. Whether we 
look at him as an aid of the gallant Wayne in extirpating 
the last remnants of the revolutionary war, and compelling 
the savages to relinquish the hatchet ; or, as a commander, 
in breaking the formidable league of the north-western 
tribes under the prophet of Tippecanoe, and afterwards in 
repelling the invasion cf the British troops and their Indian 



289 

allies, we find him always brave, prudent, and efficient; 
sharing with his soldiers all their privations and hardships, 
and more than sharing their dangers. 

As Governor of the North-western Territory, as a dele- 
gate, a member of Congress, a senator, and as a minister 
representing this republic abroad, he has displayed as much 
of ability in her civil councils, as of courage and conduct in 
the field; and his retirement to private life after so long a 
course of public service, in honorable poverty, nobly illus- 
trates his disinterestedness and integrity, and shows that the 
son of a Virginia patriot, whose signature to the Declaration 
of Independence attests his devotion to his country, has not 
degenerated among the yeomen of the west. 

The day, t(;o, that has been chosen for this ceremony, is 
replete with patriotic as.^ociations. 

Its memory comes home to the heart of every Whig 
throughout the Union. It stands foremost among the bat- 
tles of the great contest maintained by a brave yeomanry 
against the disciplined minions of Executive power, for 
the maintenance of their constitutional privileges; to limit 
Executive authority ; to repress official corruption ; to pre- 
serve independence in the Legislature, and purity in the 
Judiciary ; — in short, to carry out the Whig principles of 
our Revolutionary ancestors, and to put an end, as it was 
hoped, for ever to foreign domination in our domestic 
councils. 

Such were the glorious anticipations of our fathers on this 
day 65 years since ; such were the aspirations that sustained 
them when awaiting the approach of their veteran foes ; 
such were the hopes that soothed the dying moments of the 
first great martyr in the cause of liberty, when he poured 
out his life-blood on Bunker Hill. 

Fellow citizens, are those hopes and aspirations doomed 
to disappointment? Were those sacrifices made in vain? 
Is the rich legacy left by our fathers of a free government, 



290 

and a well-balanced constitution, to be forfeited by tlie 
rashness or violence of their descendants? 

Such are the questions which a mere party administra- 
tion of the Government, without reference to the general 
welfare, have forced upon the country for its decision. 

Within the short period of our existence as a nation — even 
before all who were actors in the great drama of the Eevolu- 
tion have retired from the scene — most fearful departures 
have been witnessed on the part of those entrusted with the 
administration of the Government, from the principles of 
those who established it. 

The concentration of power in the hands of the Execu- 
tive ; unlimited control over the public treasury ; an in- 
crease of the standing army ; a profuse and corrupt expen- 
diture in the various departments of the Government ; sub- 
serviency on the part of the Legislature ; suppression of 
debate and a denial of the right of petition — these are the 
maxims of those now in power. 

To bear our testimony against these principles, we have 
this day assembled. For this purpose we dedicate this Log 
Cabin as a central meeting-place for the Whigs of New- 
York. We dedicate it to the uses of a party pledged to re- 
duce Executive power within its proper limits; to bring 
the public moneys under the control of congress ; to re- 
store a sound ciirrency ; to secure to labor its accustomed 
reward ; to maintain the right of petition and the freedom 
of debate; to preserve unimpaired the national faith; to 
reduce the public expenditure ; to restore the prudent and 
economical administration of the Federal Government 
which existed before the present ruling party came into 
power; and to redeem the country from the disorder and 
distress and dishonor into which it has been plunged by 
the incompetency and ignorance of those entrusted with 
the powers of Government. 



REPLY TO LETTER 

OP THE 

HOIST. "V^lVi:. Xj. l^J^JEld'^ 

TO 

general iEinficIlt ^cail 

DATJCD APRIL 21, 1§4S. 



The public attention has been lately attracted to the 
conduct of the Mexican war by a letter of General Scott to 
the Secretary of War upon the laying down his command 
of the army. In this letter he recapitulates the treatment 
he has received from the Government at Washington, com- 
mencing with the attempt to supplant him in the chief com- 
mand by a party manoeuvre in Congress, and concluding 
by arraigning him as a criminal before a Court of Inquiry 
directly after receiving an account of the successful conclu- 
sion of the campaign and the capture of the enemy's capi- 
tal. The American people, unaccustomed hastily to with- 
draw their confidence from the Government of their choice, 
although much astonished at so unexpected a reward of 
most distinguished military services, hesitated to express 
their condemnation of the Administration. They suspected 
there was something behind the curtain to justify so strong 
a step as that of depriving a victorious general of his com' 
mand and subjecting him to a military tribunal in an ene 
my's country. The letter of the Secretary of War, obvi 
ously written with care, and as the manifesto of the Ad 
ministration against the Commander-in-Chief of the army, 
has relieved them from all such apprehensions. In this 
Mm 



292 

letter there are no charges of misconduct — none of oppres- 
sion nor of injustice. 

MucTi is insinuated as to what would have happened to 
General Taylor's army at Buena Vista, had a court-martial 
been called for the trial of General Marshall and Captain 
Aiontgomery : and General Scott is arraigned by implication 
for the delay in his forward movements, because on the 4th 
of May he discharged the volunteers whose term of service 
had nearly expired, so as to allow them to reach Vera Cruz 
and return before the vomito commeuceed its ravages. 

Whether the American people will regard it as a crime 
in General Scott, that he took the responsibihty of allowing 
the gallant volunteers the few weeks remaining of their 
year (varying, as the Secretary asserts, from thirty to forty- 
five days) to escape the pestilence of the coast, rather than 
to bring them within its deadly grasp by insisting on a 
literal compliance with the terms of their voluntary enlist- 
ment, is a question that may be safely entrusted to the 
country : but it requires no sagacity to ascertain the real 
strength of the cause of the Administration, when its official 
defender makes this one of the chief grounds of complaint 
against General Scott, and relies upon it as a conclusive de- 
fence of the Department for not supplying him with ade- 
quate reinforcements in Mexico. The grave statements by 
General Scott, all tend to prove an unfriendly feeling toward 
him on the part of the Administration. The most impor- 
tant facts proving the existence of this feeling, are, first, 
the attempt to deprive him of the command when in the 
face of the enemy, by placing a civilian at the head of the 
army; and 2d, depriving him of the command at the close 
of the campaign, on the complaint of a junior officer against 
whom charges had been preferred, while the complaining 
officer was released from the arrest, to which be was of 
course subjected when charges were made against him. 

To these charges the Secretary of War makes no de- 



293 

fence nor justification. In his long manifesto of twenty-five 
pages, he notices and attempts to refute or excuse the other 
statements of General Scott, proving the existence of this 
hostility; and then concludes that it is a " chimerical imagi- 
nation," because he deems that some of the secondary evi- 
dence is refuted. How far even this refutation of the col- 
lateral evidence is successful may be hereafter inquired in 
to. The American people, however, will not be satisfied 
with such a refutation, even if true, 'i hey are not so ostrich- 
like, as to overlook the main body of the charge because 
one of its members is covered with sand. 

The great question is — has the administration been in- 
fluenced by any unfriendly. feeling toward our great Cap- 
tain, and has it treated him with intentional injustice? Is 
this a chimera of the imagination? Stand forth, thou mas- 
ter of the pen, who, from the tranquil retreat of the War 
Department, prepares so skillful an attack upon the repu- 
tation of an absent Greneral, writing his dispatches upon a 
drum-head in the face of the enemy, and answer these ques- 
tions. This is what the people wish to know ! 

Did not the Administration, when it found itself at a 
loss, apply to Gen. Scott, (after avowing its unwillingness 
to do so,) to conduct the war in Mexico? 

Did not the President, before he left Washington, pro- 
mise him the most cordial co-operation and support ? 

Was not the secret design then entertained of supplant- 
ing him in the chief command by the appointment of Mr. 
Benton, then Senator from Missouri, and wholly undistin- 
guished as a soldier, as Lieut. General, as soon as Gen. 
Scott should be in such a position, that he could not with- 
draw from the field without an imputation on his charac- 
ter and patriotism ? 

Did not the Administration urge that appointment; un- 
til congress, alarmed by the indications of a popular feel- 
ing, evinced its unwillingness to perpetrate so flagrant an 
injustice ? Are these chimeras of a diseased imagination ? 



294 

On the contrary, are they not all facts, so notorious that the 
Secretary has found it safest, in his defense of the Admin- 
■ istration, to avoid all notice of them, and to make the issue 
upon other and less important points ? Whatever advan- 
tage Gen. Scott may have given him by alluding to these 
as additional proofs of the hostility of the Administration 
toward him, the country will not deem his charges to be 
refuted while these facts remain unanswered. 

With these things staring him in the face, it required 
no small confidence in the controversial powers of Gov. 
Marcy to attempt to prove a cordial feeling of confidence 
and co-operation on the part of the Administration toward 
the Commander-in-Chief of the army. 

If such be the modes in which the Administration man- 
ifests its confidence and friendship, it would be more safe to 
be on terms of hostility with it. Gen. Scott and his army 
might then, at least, run the hazard of having placed over 
them a commander, who, like Santa Anna, had given some 
proof of his ability to command. 

It might gain, from its capacity to blunder, more than 
it could hope from its judgment and sagacity. 

But no such excuse can be allowed. The Administra- 
tion, in the paltry chicanery of political management, is at 
home, and evinces in the choice of tools a power of discri- 
mination that would be commendable were it applied to 
better ends. 

After it had been defeated in its attempt to degrade Gen. 
Scott, by putting him under the command of Mr. Benton, 
it gave another manifestation of its feelings by the appoint- 
ment of Mr. Trist to negotiate the terms of peace 

I do not mean to make any comment upon the conduct of 
Mr. Trist. His exposure of the contemptible plot of Presi- 
dent Polk, and his law-partner, Gen. Pillow, is a public ser- 
vice of no small merit, and should protect him from any an- 
imadversions on account of the hostility manifested against 



295 

Gen. Scott, on his first arrival in Mexico. This spirit, how- 
ever, affords striking proof of the motive to his appoint- 
ment; and indeed the withholding of these powers from 
the commander of the army, was in itself a sufficient indi- 
cation of the feelings prevaiHng at Washington; and how 
well Gen. Scott divined those feelings when he predicted 
that he was in more danger from the fire in the rear, than 
from the enemy he was sent to encounter ! 

Other administrations had intrusted to him more deli- 
cate and important functions than those in question. 

By Gen. Jackson he was sent to maintain and enforce 
the authority of the Federal Government against the Gov- 
ernment of South Carolina. After succeeding in that diffi- 
cult and delicate mission, without resort to force, the remo- 
val of the Cherokees was committed to his charge. All this 
was skillfully performed. Under Mr. Van Buren's admin- 
istration he was employed to pacify, and at the same time 
to protect the frontier, when the border population were in 
arms and eager for collision, not only on account of the pat- 
riotic movements, but on account of the dispute as to the 
north-eastern boundary. 

In all these difficulties Gen. Scott evinced great tact 
and ability, and won from the late John Quincy Adams 
the marked compliment, that he had gained more glory 
from these diplomatic achievements than from his military 
triumphs. 

How fit and proper was it, then, to confide to one thus 
qualified, when called to lead its armies, the power to nego- 
tiate the treaty that was desired by the Government! No- 
thing but the unworthy feeling of political hostility could 
have dictated the appointment of any other person. 

So, too, the refusal to appoint an assistant adjutant gen- 
eral of his own nomination to act as chief of his staff, is an- 
other evidence of the inimical feeling at Washington. 

Notwithstanding the positive averments of the Secre- 



296 

tary of War, that sucli an appointment would have been 
contrary to the rules of the service, an infringement of the 
President's power of appointment, and an indignity to all 
who hold the same post with the rank of captain : I venture 
toappeal to all conA^ersant with military history for confirma- 
tion of the fact, that this is the first instance where a com- 
mander-in-chief in the field has been denied a head of the 
staff of his own selection. So much depends upon the cor- 
dial co-operation and confidence subsisting between the gen- 
eral and his chief staff of&cer, that not even Gov. Marcy's 
appeal to the democracy, by his allusion to the President's 
regard for the rights of officers of inferior rank, can pre- 
vent general astonishment that the request was not com- 
plied with. 

But is it true that it was the President's scrupulous re- 
gard for the rights of military rank, that prevented his com- 
pliance with that request? 

Where was that regard when the veteran and accom- 
plished ofl&cers of the army were passed by and the politi- 
cal partizans and favorites of the President were taken from 
private life and placed over them in command? 

Were there no whispers of that conscientious feeling 
to stay his hand when it took Gideon J. Pillow from the 
peaceful drawing of pleas and demurrers, and sent him to 
Mexico to astonish the universe with his dispatches, where 
the writer was cut down four times in on^ battle, and then 
" while lying on his back from an agonizing wound was em- 
ployed in writing his dispatch?" 

"Such doughty valor has not been Avitnessed since the 

days of Withrington at Chevy Chase, 

" Who, when his legs were smitten off, 
Still fought upon his stumps." 

After such exhibitions of the President's views as to the 
power of appointment, it will be diflicult to make the army 
or navy believe that the refusal to comply with Gen. Scott's 
request proceeded from his regard to the rights of rank. 



297 

Sucli stories must be classed among Puncli's "Tales for 
the Marines." 

Great stress has been laid by the Secretary of War up- 
on the fact that Gen. Scott complains of the rebuke of the 
President, because he had taken Major Sumner Avith him as 
commander of the Cavalry, and directed Col. Harney to take 
command of the Cavalry in Gen, Taylor's army ; and the 
rebuke is deemed to have been well-founded, because Gen. 
Scott, before he received it, had determined to take Col. 
Harney with him in his movements upon Mexico. 

There would be some plausibility in this, if the sole 
question was whether it were proper to take Col. Harney 
in that expedition or not. 

The question, however, is whether the General com- 
manding all the operations in ,an enemy's country is to be 
entrusted with the choice of the officers detailed for subor- . 
din ate commands, and whether a captious interference with 
that power, by the President, 2,000 miles distant from the 
scene of action, is evidence of that cordial co-operation of 
which the Secretary so much boasts. 

Gen. Scott might have had good reasons for leaving 
Col. Harney with Gen. Taylor. 

Gen. Taylor was already sufficiently weakened by the 
withdrawal of the main body of the regular troops. His 
field operations were better suited for the display of Col. 
Harney's qualities of a cavalry officer than the descent upon 
Vera Cruz ; and the glorious victory at Buena Vista shortly 
after proved that there was as much need of Col. Harney's 
services at that point as with the Commander-in-Chief 

The censure of Gen. Scott for making this disposition 
of his subordinates, is sufficiently indicative of the un- 
friendly feeling at Washington. Standing alone, it would 
only show that the President, like all men born to com- 
mand, deemed himself best qualified to judge of and to su- 
perintend all the details of the public service in all parts of 



298 

his vast dominions ; but connected with the other studied 
movements to annoy and degrade Gen. Scott, from the at- 
tempt to supplant him in the command down to his late ar- 
raignment before the Court of Inquiry, it becomes a proof 
of an inimical feeling on the part of the Administration, to 
which it was not prudent in the Secretary to allude. 

So too his argument to show Gen. Scott's want of ac- 
curacy in his estimate of the expense of surf- boats at $200, 
when the Secretary asserts that the actual cost was $950. 
Grant that to be so, does that prove Gen. Scott's estimate 
to be inaccurate ? 

During the late Florida war firewood was bought at 
New Orleans and transported to the camp at a cost of $40 
per cord, and it is stated that during this war mules have 
been bought in Ohio at $70 a head, and transported to 
Mexico, where they may be had for one-third the cost. 

Do these abuses in the disbursement of the public rev- 
enue prove that estimates of the fair cost were not properly 
made? Gen. Scott, in his estimate, made no allowance for 
the extra expense of providing a good Democratic contrac- 
tor ; he did not calculate the great cost of the ardent patri- 
otism that hangs round the War Department, and enriches 
itself by furnishing all that the Government requires at a 
great bargain. He merely ascertained what a good surf- 
boat could be built for, and made his estimate accordingly. 
That he was nearly right I have no doubt, from the cost of 
the surf-boat at Long Branch, equipped as a life boat, to 
take off the crews of wrecked vessels, which was built with- 
out regard to expense, and cost only $450. 

Nearly one-half of the Secretary's manifesto is devoted 
to an examination of the complaints in relation to the defi- 
ciency of transports and ordnance. Gen. Scott alleges that 
his expedition was delayed for want of these necessary 
things. Does Mr. Marcy deny this ? Not at all. 

He seeks to show that it was not his fault, and to throw 



299 

the responsibility upon Gen. Scott. To do this, he asserts 
that Gen. Scott required too much, and triumphantly 
proves it by showing that he achieved success, although his 
requisitions were not complied with. 

Most admirable reasoning ! By referring to the success 
of the army, the Department may be secured from any charge 
of neglect or deficiency of reinforcements and supplies. 

Gen. Scott alleges delay for want of surf-boats. "Why, 
you landed with what you had," is the triumphant answer 
of the Secretary. " My pursuit of the Mexicans after defeat, 
was prevented by a deficiency in the means of transpor- 
tation." "Your victorious march to the enemy's capital re- 
futes the charge." " But the troops were without clothing, 
and the army without proper ordnance at that eventful mo- 
ment." "Their success proves that they did not require 
such superfluities." 

Eeally, the Secretary of War must place a mean estimate 
upon the public understanding, if he supposes that it can be 
misled by such shallow reasoning. 

Gen. Scott, in his estimate of what was required for the 
success of our arms, of course demanded more than was ac- 
tually expended. His estimates were founded upon a larger 
body of troops than he actually received. He calculated 
upon a vigorous resistance, and supposed it within the range 
of possibilities that he might meet with unforseen checks and 
reverses. 

Finding that he was disappointed in his expectations from 
home — that he did not receive what he required and what 
had been promised, with characteristic vigor he set himself 
to accomplish his objects with the means that he had. He 
succeeded against forces so far superior, that his success has 
been deemed little less than miraculous ; and the Secretary 
now very coolly turns upon him with a reproof of the ex- 
travagance of his requisitions, because the result has shown, 
that, notwithstanding the Department failed to comply with 
Nn 



300 

them, still Gen. Scott has succeeded. "With the feeling mani- 
fested at Washington against this distinguished commander, 
what would have been the comments on his conduct, had 
the batteries at Vera Cruz ceased in the midst of a protract- 
ed siege for want of ammunition ? What would the country 
have thought of the foresight of a General, who based his 
requisitions upon an uninterrupted current of success, and 
threw himself and his army upon the desperate hazard of a 
campaign without a reverse, or being compelled to surren- 
der for want of supplies at the first check or disaster? 

Is it possible that such can be the real opinion of one 
early schooled in the art of war, and who, looking back with 
just complacency at his youthful laurels, advised a political 
friend and partisan in his gubernatorial canvass to glide 
gently over "the patch in his breeches," then the subject of 
public comment, and to call the whole attention of the vo- 
ters to his military exploits ? 

If such be the specimen of the mode in which the Secre- 
tary prepares for a campaign in an unknown country, it is 
at least fortunate that we have a commander who can more 
than compensate, by the vigor of his execution, for all the 
deficiencies in the plan and preparations. 

But is it true that due diligence was used in forwarding 
what the Department had provided? Let it be borne in 
mind that Gen. Scott had strenuously urged upon the De- 
partment the vital importance of commencing the siege of 
Vera Cruz early in February. To do this, a train of siege 
artillery was necessary, and a requisition was accordingly 
made, and yet, on the 8th of February of last year, the or- 
dinance destined for that place, with the exception of ten 
mortars, was left on Governor's Island, and not even the 
vessel engaged for its transportation. To supply that defi- 
ciency, heavy guns were landed from the vessels of war; 
and if the castle had held oat, it is very doubtful whether 
the artillery at the command of Gen. Scott would have been 
sufficient for its reduction. 



301 

Is there no delay or neglect on the part of the Department 
in this striking fact ? Is there none in another fact stated 
by Gen. Scott, and nowhere denied by Gov. Marcy, that 
the chief commissary in Gen. Scott's army had not received 
a dollar from the United States since the landing at Vera 
Cruz ? Here, from March 9th to February 25th, a gallant 
army was left to struggle with inconceivable difiiculties in 
an unhealthy climate, and while the sub-treasury was over- 
flowing with specie, and the President and his subordinates 
and satellites were in the daily receipt of their unearned 
stipends, not a dollar could be spared for the commissariat 
of our brave and neglected soldiers. 

Equally neglectful and culpably indifferent to the wants 
of the army was the conduct of the Administration in rela- 
tion to the ten transports required by Gen. Scott to be sent 
from the southern states. The Secretary admits that Gen. 
Scott made his requisition on the 15th of December, and 
that they were ordered ; but excuses his neglect afterward 
to comply with it because Gen. Jessup, in a letter dated 
December 27th, and which was shown to Gen. Scott, says 
that " vessels for additional transportation that may be re- 
quired can be chartered on favorable terms at New Orleans." 
Upon the receipt of that letter the Secretary countermand- 
ed the order for those transports, and yet Gen. Jessup, who 
is called upon by Gov. Marcy as the witness to exculpate 
the Department, says in his exculpatory letter of the 17th 
of April last, a letter written for the very purpose of vindi- 
cating the Administration: " The General, no doubt, re- 
lied upon those vessels. I expected them, for I believed 
they would be chartered and on the way before any letter 
could be received." The delay, therefore, of the Secretary 
in complying with the requisition was the cause, and is 
made the excuse for not sending them at all. Admirable 
promptitude ! Most commendable reasoning ! 

The next excuse for want of promptitude in not furnish- 



802 

ing supplies, is based upon the interruption of the commu- 
nication between the army and Vera Cruz. This has now- 
become a high crime and misdemeanor on the part of Gen. 
Scott, growing out of a desire to assimilate himself with 
Cortes, the first conqueror of Mexico ; and he is accused 
with indulging an unwise ambition at the expense of the 
service and the country. It is difficult to refrain from in- 
dignation at such a charge on the part of the Government. 
The design of the descent upon Vera Cruz was to dictate 
the terms of peace at the enemy's capital, a city strongly 
fortified by nature, and only accessible by roads leading 
through defiles hitherto deemed impregnable. The popu- 
lation was imbued with a fanatical hostility, both national 
and religious ; and from the ease with which a well-ap- 
pointed army of more than twenty thousand men was raised 
to surprise Gen. Taylor at Buena Vista, Gen. Scott wisely 
concluded Mexico to be capable of no small military effort. 
After the capture of Vera Cruz and the victory at Cerro 
Gordo, he found the reinforcements which had been prom- 
ised came in so slowly, that his advance was prevented by 
the impossibility of keeping a sufficient force in front to 
overcome the enemy, and at the same time maintaining 
garrisons in the important points on the line of communica- 
tion with Vera Cruz. 

He was obliged to determine between relinquishing the 
advance, and thus enabling the enemy to recover from his 
previous defeats and recruit his armies, or to relinquish the 
line of communication and call in his garrisons to strength- 
en his column in front. He wisely and gloriously decided 
upon availing himself of the means within his reach, and 
to advance upon Mexico. That he might have been some- 
what influenced in this decision by a feeling that his army 
had been abandoned (like Gen. Taylor's, in more than one 
instance) to their own skill and valor, does not detract from 
the merit of that decision, however it may injuriously re- 



803 

fleet upon the Government that, by its conduct, had given 
too much ground for such a conviction. 

The decision was forced upon him by the inadequacy of 
the forces to the task he was sent to accomplish, and it is 
difficult to imagine how the President, who feels himself so 
competent to decide at two thousand miles distance upon 
the propriety of the selection of a commander of a dragoon 
regiment, should not have foreseen that Gen. Scott would 
be compelled to make such a decision. A little proper 
foresight would have avoided the dispatch of the reinforce- 
ments in small detachments, compelling them to wait in 
the malaria of Vera Cruz until sufficiently strong to force 
their way to head- quarters. 

The very mode to which the Secretary resorted to rein- 
force the army, shows incapacity or culpable negligence. 

Why were these troops sent to Vera Cruz in small de- 
tachments ? It was well known at Washington that the 
road to head- quarters was infested with guerillas, and that 
all supplies and detachments must be sent in strong parties. 
Whether Gen. Scott discharged the volunteers prematurely 
or not, it was known that their term of service was about 
expiring, that his army needed reinforcing, and a little of 
that prudence and forecast for which the Secretary so 
much compliments the department over which he presides, 
would have sent the volunteers to Vera Cruz, not in "small 
detachments," but in sufficient numbers to have formed 
their own escort to head-quarters. 

That this was not done is in itself strong ground of com- 
plaint ; but to turn upon Gen. Scott, and to censure him 
for not keeping open the line of communication, when it 
could only have been done at the expense of his move- 
ments in front, and the sole objects of the campaign, is a 
specimen of audacity that would be more in place in the 
execution of a military movement, than in a grave appeal 
to public opinion by the head of the Department. 



804 

I now proceed to what Governor Marcy calls the main 
object of Gen. Scott's communication, and the crowning 
outrage of the Administration, that is, the depriving him of 
the command of the army, and subjecting him to a trial be- 
fore a military tribunal in the enemy's country. 

In all this the Secretary can discover nothing but a 
strict conformity with the rules of the service and the max- 
ims of justice. 

The depriving him of his command is but a compliance 
with his request to be recalled, and his trial by the Court 
of Inquiry is most impartial justice. 

Is it possible that the Secretary supposes the country can 
be so easily misled ? 

The request of Gen, Scott to be recalled was made from 
a conviction that the progress of his gallant army was im- 
peded by want of confidence on the part of the Adminis- 
tration in its commander. The President refuses to recall 
him until that motive had ceased to be of weight, by the 
final success of our arms in the surrender of the enemy's 
capital ; and he selects the moment of triumph to grant this 
request, accompanied with an order to submit himself as 
prisoner at large to a military tribunal, instituted as an 
additional mark of the Presidents consideration for this dis- 
tinguished general. In the character of this Court we can 
perceive more evidence of this peculiar regard and consid- 
eration. Gen. Towson, who has long been on terms of 
personal and political hostility to Gen. Scott, and who 
holds his of&ce not upon the ordinary terms of military 
commissions, but upon the usual tenure of partizan ap- 
pointments, periodical nomination and confirmation by the 
President and Senate. 

Col. Belknap was selected as an intimate friend and ad- 
mirer of Gen. Worth and Gen. Cushing, whose instincts 
make him a friend and partizan of the dispensers of pa- 
tronage. Before such a tribunal the gallant and scarred 



305 

veteran of Bridge-water, fresli from tlie conquest of Mexico, 
is arraigned side by side with Gideon J. Pillow ! 

Among the brave of&cers in the field — Butler, Smith, 
Quitman, Twiggs, and Shields — were there none com- 
petent to form a court of inquiry ? or could not the Presi- 
dent trust men who had been tried in the field and shared 
the danger of the campaign to do this dirty work ? 

Impartial justice ! If any such intention existed, a dif- 
ferent tribunal would have been constituted, and the in- 
quiry into the charges of Gen. "Worth would have been 
suspended until the return of the army. Public opinion has 
already passed upon these charges. It has pronounced 
them as untenable as Gen. Worth himself seems to have 
considered them, when called upon to substantiate them 
before the Court of Inquiry. No injury could have re- 
sulted to the service, or to Gen. Worth, by permitting his 
charges to remain uninvestigated until the return of the 
parties to the United States. This, however, would not 
have suited the purposes of the Administration. Gen. 
Scott, by his brilliant campaign in spite of the want of sup- 
port at Washington, had made himself too conspicuous in 
public estimation. They feared his return to the United 
States, fresh from the conquest of Mexico, and burning with 
indignation at the treatment of his brave companions-in- 
arms by an ungrateful government. 

The dispute in which Gen. Worth had unnecessarily in- 
volved himself, was eagerly seized upon. The Adminis- 
tration thought that a charge might be brought against 
Gen. Scott, which, by dexterous management, could be 
used to detain him in Mexico until the Presidential cam- 
paign was over. Failing in this, from some compunctious 
awakening in the mind of his accuser. Gen. Pillow is put 
forward to court an investigation into his own agency in 
the notorious Leonidas letter, and General Scott is detained 



806 

during tlie inquiry into the conduct and exploits of this 
famous ParoUes of tlie West. 

The purpose of the Administration is answered — Gren. 
Scott is removed from the head of the army — he is pre- 
vented from returning to receive the thanks of his admiring 
countrymen — he is detained a prisoner at large, attendant 
upon the' dilatory proceedings of an unfriendly Court — his 
conduct is made the subject of carping criticism, and "im- 
partial justice is satisfied." 

"Was it at the suggestion of the same impartial justice 
that Gen. Pillow was furnished with documents and let- 
ters from the departments which were withheld by the Ex- 
ecutive from Congress ? Out upon such hypocrisy ! 

Victorious commanders have before our day been treated 
with ingratitude. Belisarius was brought home in chains 
to the court of the feeble Justinian. Gonsalvo was recalled 
from the conquest of Italy, and sent to obscure retirement 
by the jealousy of the faithless Ferdinand. The world has 
long rung with the treatment of Columbus for the discovery 
of America ; and if Gen. Scott, in imitation of Cortes, 
placed himself and his army upon the resources of their 
own valor and discipline, the President has completed the 
parallel by subjecting him to as ungrateful a return for his 
eminent services as that awarded to the first conqueror of 
Mexico by the Spanish monarch. 

In these instances there was the naked and openly- 
avowed exercise of power. Despotism disdained to excuse 
or justify itself by bald pretences. 

It was reserved for the existing administration of this 
government to render similar ingratitude more hateful by 
the endeavor to make it assume the garb of "impartial 
justice." 



THE 



REPUBLICAN CONVENTION. 



biuMration of its J)riiuiplc0 anb Action. 



LETTER TO HON. GREENE C. BRONSON. 



Hon. Greene C. Bronson : 

Sir — In your letter to Mr. Delavan, giving your reasons 
for opposing his views in relation to temperance, you 
thought proper to enlarge your ground of opposition to Mr. 
Clark, and to assail him as the candidate of what you char- 
acterize "as a sectional movement — the North against the 
South — which, in my judgment, cannot triumph without 
rending the Republic in pieces. This movement," you can- 
tinue, "goes beyond the restoration of a geographical line 
between slave and free territory, and attacks the sovereignty 
of the states by interfering with their internal affairs." 

You have not thought fit to refer to the authorized pro- 
ceedings of the Convention for proof of these grave charges 
against a most respectable body of your fellow-citizens, 
who have determined no longer to be governed by party 
names in the present serious aspect of national politics. 
The expression of individual opinion on the part of a dele- 
gate, unsanctioned by the Convention, and going beyond 
the well-guarded and constitutional grounds assumed in its 
o 



308 

resolutions, cannot, surely, in your logical mind, be adduced 
as proof worthy of consideration. 

It is indeed in accordance with that system of tactics so 
adroitly carried out by the slavery agitators in Congress, 
who always portray the North as responsible for the vaga- 
ries of Birney and Gerrit Smith; and wield a controlling in- 
fluence over their constituents, by representing themselves 
as the sole resisting bulwark of a torrent of fanatical abo- 
lition sentiment pervading the whole population of the free 
states, and threatening to overwhelm the domestic institu- 
tions of the South. 

While these false representations of the state of Northern 
feeling on this question were used only by reckless dema- 
gogues, for the purpose of proving to their constituents the 
importance of keeping such zealous patriots in public life, 
they might be properly regarded as electioneering expe- 
dients, and dismissed with contempt, after they had served 
the unworthy purpose for which they were fabricated. But 
when advanced by a public servant of your age and char- 
acter, they become of more importance ; and we may well 
ask what has occurred, that has induced you to charge the 
great majority of the North with a participation in the wild 
vagaries of Birney and Garrison ? 

It is true that nearly all born and bred under our free 
institutions regard slavery as a moral and social evil ; but 
it is also true that the opinion here is almost unanimous, 
that with that institution in other states, we have no con- 
cern, except when called upon to preserve tranquillity — 
that under the Federal Constitution, the question of domes- 
tie slavery in each state is placed under the exclusive con- 
trol of the state government. 

Those who dissent from that conclusion are a small body 
of impracticable men, without influence over public senti- 
ment, and as much entitled to represent the opinion of the 
North as to its right of interference with Southern slavery, 



309 

as the small body of reformers, wlio periodically resolve 
about women's rights, is to express its sentiments on the 
subject of marriage. 

In our state of society no danger is caused, and but lit- 
tle attention is attracted, when misguided and excited en- 
thusiasts hold their meetings and proclaim new revelations : 
whether they relate to the reform of society in the South ; 
the change of the relations between the sexes ; or the spir- 
itual rappings of statesmen in spheres where nullification is 
unknown. 

To repress the free expression of opinion by the civil 
arm, or by the more prompt interference of Judge Lynch, 
is no part of our system of republican freedom ; and, although 
to impute to the community sympathy with such opinions, 
because it does not prohibit their utterance may appear 
logical to those brought up under the administration of that 
discriminating magistrate, (who is said to exercise great 
power in producing unanimity of sentiment,) it could 
scarce have been expected from one so well aware of the 
freedom of opinion here, and who has so lately exercised 
the liberty of advancing opinions totally different from 
those previously expressed by himself on this very ques- 
tion. In your letter, written in July, 1848, to the Hon. 
John Cochrane, you say in reference to the propriety of 
applying the Wilmot restriction to the territory acquired 
from Mexico, " I am utterly opposed to the extension of 
slavery into any territory of the United States where it 
does not now exist." Also, " If our Southern brethren 
should make the question, we shall have no choice but to 
meet it, and then whatever consequences may follow, I 
trust the people of the free states will give a united voice 
against alhiving slavery on a single foot of free soil, where 
it is not now authorized by law." 

It is not my intention to complain of the inconsistency 
between those opinions and your present views. You have 



310 

a perfect right to change your sentiments, and indeed it is 
a difficult task to preserve the relations of fidelity to your 
party with consistency of opinion on this question. I do 
not claim for the Auburn convention such an enlarged 
privilege; but that body has a right to be judged by its 
resolutions and acts, and not by what might have fallen 
from any one delegate in a disorderly debate. There 
were in the Convention, delegates who wished to obtain a 
sanction to sentiments similar to those you reprobate; and a 
resolution was introduced in favor of using " all constitu- 
tional means to overthrow and cripple slavery where it now 
exists." This resolution was properly deemed an interfe- 
rence with slavery in the respective States; and although 
it was limited to the exercise of constitutional means, the 
Convention evinced its determination not to enter upon a 
system of abolition agitation, by laying it upon the table 
by an overwhelming vote. 

Indeed you make a signal error in undertaking to con- 
found the present feeling pervading the free states on this 
subject, with that feverish thirst for notoriety animating 
those who periodically figure in abolition conventions, re- 
solving to set the captive free throughout the world ; and' 
yet, when the question is upon extending slavery over an 
area larger than New England, cannot sit up after 9 o'clock 
at night to oppose its adoption. 

Such professors of Christianity would not watch one 
hour with a dying Saviour. 

It is not to such men that the cause of freedom is now 
entrusted. The men of all classes and pursuits in the 
North, have been aroused by the bad faith of the South in 
relation to the Missouri compromise. They have long 
been aware that the Southern representatives in Congress 
have always acted as a disciplined, compact body; and 
have thus exercised a sectional influence unfavorable to the 
interests of other parts of the Union. They had hoped that 



311 

this sectional feeling would have become ■weakened by age, 
and that the representatives of the slave states would at 
last admit, that there were other interests in the country 
worthy of the attention of the national government. That 
hope is almost extinct. 

Emboldened by the facility with which they have ob- 
tained the co-operalion of their Northern adherents, and the 
easy indifference with which their constituents have re- 
garded these concessions ; they have sought to control the 
public patronage, and have at length entered upon a system 
of slavery aggrandizement, with the view of obtaining the 
permanent control of the government, and extending this 
pernicious institution throughout the Union. They are not 
content with the compromises and safeguards of the Consti- 
tution ; but seek to enact new ones, and to force their pe- 
culiar views upon the convictions and consciences of the 
free states. Witness their rules in Congress in violation of 
the right of petition ; their attempt in the Senate in 1836 to 
turn the post-ofiice into a secret police department, to pry 
into letters and publications for the purpose of suppressing 
all discussion about slavery : their demands of pledges on 
this subject from Northern representatives upon the organ- 
ization of Congress in 1849, pledges which they could not 
make without losing the confidence of their constituents : 
the movement by the representatives of the South in 1848 
to restore the balance of power between the free and slave 
states, by giving a preponderance in the Senate to the lat- 
ter, to compensate for the increase of population in the free 
states. Eemember how that effort was urged by frantic 
threats in Congress of separation, unless the preposterous 
claim was admitted — that a committee of Southern whigs, 
seconding the course of Southern democrats in Congress, 
waited on Gen. Taylor to bring him into the movement, 
and finding him deaf to their sectional views, pressed 
their purpose with such indecent urgency, that the old 



812 

soldier repelled tliem -witli scorn, and told them to " raise 
the standard of division when they pleased ; he needed no 
aid from the North. "With the militia of their own states 
he would put them down." 

The gallant old patriot was right. He was from the 
South himself, and he knew that its citizens and planters 
were not truly represented by this knot of political agita- 
tors in Congress. He knew that they were quietly engaged 
in their proper pursuits at home, and entertained no inten- 
tion to risk their tranquillity and peace in an insane strug- 
gle for sectional supremacy. To them it was of no impor- 
tance whether a Virginian or a New Yorker represented 
the country at the Court of St. James, or influenced its 
councils in the Cabinet at Washington. To these reckless 
agitators it was everything. To accomplish their purposes 
they have raised and kept up this sectional excitement. 

They knew that their constituents were sensitively alive 
to all outward interference with their servile population. 
Indeed, they may well be so. With the great mass of the 
working muscle and sinew of the community composed 
of those who have all the passions and feelings, and none 
of the rights of men ; it would be insane indifference not to 
guard their tranquillity with the most jealous care An 
appeal to this feeling was sure to meet with a ready re- 
sponse ; and those were most certain of popular support 
who were loudest in denouncing Northern interference 
with this subject. Hence their constant effort to represent 
the whole North as truly represented by the actors and 
scene-shifters who manage the abolition puppet-show; and 
to identify the strong and universal reprobation of the 
principle of human slavery existing here, with the fever- 
ish excitement of those senseless agitators. Hence their 
insertion in the Fugitive Slave Law of a provision ena- 
bling the marshal to call out the posse comitatus to deliver 
up the fugitive slave. They well knew that the citizens 



313 

of the free states universally condemned slavery ; that they 
had with much effort and sacrifice abolished it at home : 
and to call upon them in obedience to the law to act in 
their own persons as slave-catchers, to deliver up any fugi- 
tive who might be driven from a plantation by the oppres- 
sion of his master, was a triumph not to be foregone. True, 
the performance of the marshal's orders was repugnant to 
the convictions and humiliating to the feelings of those 
called upon to obey; it was, however, a triumph of the 
slave power, and if the law could be fully caried out, and 
slaves freely carried, like other property, into all parts of 
the Union, it was not improbable that the threat of a South- 
ern senator might be realized, and that this generation 
might witness his calling the roll of his slaves under the 
shadow of the monument of Bunker Hill. I do not intend 
here to inquire into the constitutionality of this law, nor to 
comment upon the propriety of subjecting the Government 
to the expense of sending back the fugitive to his mater's 
plantation. I merely allude to the impolicy of passing a 
law so well calculated to embitter the feelings of that sec- 
tion of the country where alone it was to be enforced, by 
compelling its citizens to perform a task, which in the slave 
states is confined to a class of men whom no Southern gen- 
tleman would allow to cross his threshold. It was a law 
well calculated to produce sectional feeling, when so de- 
grading and revolting a duty was wantonly imposed upon 
the citizens of the free states. Their habitual obedience to 
law, however, prevailed, and the statute has been executed; 
and under the dexterous management of Southern politi- 
cians, both parties had been induced in national conven- 
tions to sanction it, as part of a series of measures by which 
the slavery question was finally settled, and for ever ex- 
cluded from national politics, 

' This brazen falsehood was hardly uttered, when measures 
were taken to show its futility. Presuming upon the dem- 



314: 

ocratic strength in Congress, and upon a President of the 
same character, the plan to secure the ascendancy of the 
slave power in the Government was brought forward, and 
the repeal of the Missouri compromise was proposed in 
Congress. New efforts were made to force the annexation 
of Cuba, and a proposition made to pave the way for re- 
establishing the slave-trade. To these latter measures, I 
refer merely as indications of the new policy of the Gov- 
ernment They have not yet been adopted, and, in the 
present temper of public sentiment, are not likely to be. 
The Missouri compromise, which declared that while slave- 
ry might exist in the Louisiana Territory, south of the north- 
ern boundary of Arkansas, it should be prohibited north of 
that line, was repealed. It was hastily done in a Congress 
elected when no such proposition was before the public ; 
and even you will admit, that no Congress could have been 
elected to repeal that compromise, had the question been 
agitated at the polls. It was therefore done in violation of 
public sentiment, and in violation of parliamentary law. 
More than that, it was done in violation of public faith. 

In compliance with public sentiment in 1820, it was pro- 
posed in Congress to prohibit slavery in Missouri, and to 
incorporate that prohibition in the act admitting it into the 
Union. 

This had been done in the acts admitting Ohio, Indiana, 
and Illinois. It was in accordance with the North-west 
ordinance of 1787, and its beneficial effects were seen in 
the growth and prosperity of those states. The South op- 
posed it; and as a measure yielded to their urgent demand, 
the Missouri compromise was made. Nearly all the South- 
ern representatives supported it, and, with the aid of a few 
Northern votes, it became a law. As such it has been re- 
spected by the North ; and Arkansas was admitted with 
slavery under that Compromise, with the acquiescence of 
the North. After the lapse of one-third of a century, the 



815 

time approaclies when free states are to be formed from 
that territory, and the South seeks to be relieved from per- 
forming its part of the bargain. 

In a Congress chosen without reference to the question, 
it succeeds by the help of the Executive patronage, in re- 
pealing the compromise, and opens the whole territory to 
the admission of slavery ; and now, because the North re- 
sents this gross violation of faith on the part of the South 
— this open betrayal of their trust by a portion of its own 
representatives, a sectional movement, forsooth, is com- 
menced, "which, in your judgment, cannot triumph with- 
out rending the republic in pieces !" 

The South can be arrayed against the North without 
danger to the Union ! As long as no resistance is made to 
the aggrandizement of slavery, the Union is safe : but 
when the North stands on its defence, and insists that 
slavery shall not be extended: then, forsooth, a sec- 
tional movement is commenced which must destroy the 
Union ! 

Do you really think that the citizens of the free states 
are to be gulled by such suggestions ? That they can be 
led to believe that this Unioa can be preserved only by 
continual concession on their part ; or that a Union upon 
the basis of concession on one side, and aggression on the 
other, would be worth preserving ? 

The free men of the North do not so understand their 
position in this Union. They know, that under the Con- 
stitution, Congress alone is vested with the right of legis- 
lation over all the public territory ; that that right has 
been exercised without question from the formation of the 
Government ; that slavery has been kept out by legisla- 
tion from the states north of the Ohio ; and they feel a 
patriotic pride when they see the lusty, free-born states 
north of that river fast assuming the foremost place in the 

Union ; while they turn with shame from the contrast ex- 
Pp 



316 

hibited by Missouri and Arkansas, allowed to come into 
being with tlie black caul of slavery on their faces. 

They feel indignant, too, at the bad faith exhibited by 
the representatives of slavery and by the dough-faces of 
the North. They are deaf to all threats of separation. 
Those threats have been so often reiterated, that they have 
lost their power. The citizens of the free states are too 
much aroused to be bullied or cajoled. 

They have determined to assert their just rights under 
this Government, and to prevent " the further extension 
of slavery to a single foot of the public territory." If this 
determination excites the anger of the slavery propagand- 
ists, the political gamblers who so readily use the threat of 
disunion will be made " to show their hand." The people 
of the North will know whether the bonds that bind us 
together rest so lightly, that the people of the South are 
ready to throw them off, unless the scheme of slavery ag- 
grandizement is made the policy of the Government. That 
this is their determination, no one can doubt. Iowa and 
Maine have discarded all old political differences, and spo- 
ken in language not to be misunderstood. Indiana, Ohio, 
and Pennsylvania have uttered their indignation in still a 
louder voice. Even New Hampshire refuses "to return 
like a dog to its vomit," and will no longer send spaniel 
senators to do the bidding of the South. 

And think you that New York and Massachusetts will 
hold back ? That they will falter in their assertion of the 
principle of free soil ? That states, to whose generous re- 
linquishment of territorial claims the Union is indebted for 
the greater part of the free north-west, will now disavow 
their old and long-cherished policy, and will either of them 
claim the honor of raising the banner of slavery extension 
in the North ? 

I can hardly suppose, that even you can cherish so delu- 
sive a hope ; and can only reconcile your expressed deter- 



317 

mination to sustain the repeal of the Missouri compromise 
with your acknowledged good sense, except upon the 
principle of your avowed resolution to retire from pub- 
lic life. 

I am, respectfully yours, 
J. Blunt, 
Chairman of the State Central Committee 
of the Auburn Convention. 



ARGUMENT IN THE SUPREME COURT. 



John P. Beekman, 
vs. 



The People of the State of New York, and 

Others. 



This case, which was brought to obtain a judicial con- 
struction of the will of Dr. Barthrop, of Kinderhook, came 
up for argument in term before the Supreme Court in 
this city. 

Mr. J. Blunt. — After the very careful and elaborate 
examination by the opening counsel for the plaintiff and 
the people, of the decisions that have been made touching 
the law of charitable uses, my duty will be confined to a 
brief recapitulation of the facts in this case, and a reply to 
the principal objections urged against the validity of this 
will. 

From the counsel for the plaintiff we learn, that shortly 
after the revolution, a young Englishman established him- 
self in Kinderhook as a physician, and in the course of 
time married a widow of good estate, who was the mother 
of the plaintiff, and one of the defendants by her first 
husband. 

In 1838, he died, leaving no children, and his widow, 
wealthy in her own right. His only surviving relatives, 



319 

we are informed, were a sister whom lie left in England, 
and her children, whom he probably never saw. 

During the year preceding his death his mind was often 
occupied in making the final disposition of his estate, Avhich 
was large. 

In October, 1837, he made his will, and, after making 
suitable provision for his widow, gave various legacies to 
his sister and her children, to his two step-sons, and to the 
children of many of his neighbors, whom he had probably 
attended as a family physician. He then gave the residue 
of his estate to certain charitable societies, chiefly for the 
relief of females, giving, however, to his executors a dis- 
cretionary power to withhold the legacy from any society 
which was not properly conducted. He also directed that 
his executors should collect his debts in the course of eight 
or ten years, as he did not wish persons unnecessarily 
hurried for payments. He subsequently added several 
codicils to his will, all of them indicating his intention to 
devote the residue of his estate to charitable societies for 
the relief of females. That indication is to be seen in the 
codicil of the 12th of May, 1838, and also in the last codi- 
cil of October 13, 1838. I refer to these codicils to show 
that this intention was never laid aside during the whole 
time. 

In the first codicil to the will there are two provisions, 
that the plaintiff objects to, and which, therefore, require 
to be noted. The first is a direction to the executors to buy 
a farm for $6,000, for the benefit of his nephews and nieces, 
where they may reside, if they think fit, for fifteen years, 
when the same is to be sold and the proceeds divided 
among them. 

The second is a direction to his executors to build a 
Public Dispensary, like that in New York, for indigent 
persons, both sick and lame, to be attended by the dispen- 
sary physician at their own homes, and also daily at the 



820 

dispensary. The executors are directed to consult judi- 
cious men at Albany respecting the dispensary and the 
funds necessary to carry on the same. The residue of the 
estate was then to be paid over to such societies for the 
relief of indigent and respectable persons, especially fe- 
males and orphans, as the executors in their discretion 
should select. 

In the last codicil the final disposition of his estate is 
made somewhat modifying the previous arrangements. 

The individual legacies are left untouched, and the resi- 
duary legacy is modified thus: $19,000 is given to his 
executors to pay over if the societies are properly managed, 
as follows : $5,000 to the Society for the benefit of Tailor- 
esses and Seamstresses in Philadelphia ; $5,000 to the same 
society in New York ; $3,000 each to the Female Assist- 
ance Society, the Society for tbe Relief of Respectable Aged 
and Indigent Females, and the Female Benevolent Society. 
The residue of his estate, after satisfying the provision in 
regard to the dispensary, he gives to his executors in trust, 
" that they shall and may pay and apply the same in such 
sums and at such time and times as in their discretion they 
shall think fit and proper to the treasurer or other officer 
having the management of the pecuniary affairs of any one 
or more societies for the sujjport of indigent respectable 
persons, especially females and orphans, and for the use of 
said society or societies, hereby intending to give to my 
executors full discretionary power as to the disposition of 
the same, but so as that the same shall be applied to objects 
of charity." Three executors were nominated in the will, 
and in case of one or more declining, two other persons 
were nominated to act in the place of those declining to act. 

The probate of the will was contested before the Surro- 
gate, for some ten months, on the alledged incompetency of 
the maker, and when it was proved, on the 23d of August, 
1839, the executors and those nominated in their place all 



321 

renounced the office of executor, and the widow and the 
step-son of the testator were appointed to administer the 
will. 

The specific legacies were paid, except $10,000 to the 
Tailoress' Societies, which, it is alleged, cannot be found. 
The widow died in ISiS, and the surviving administrator 
now commences this suit, alleging the will to be void, -.so 
far as relates to the purchase of a farm, the establishment 
of a dispensary, and the residuary bequest to the use of the 
charitable societies. The administrator has strong doubts 
as to its validity ! 

I may here be allowed to inquire, whether any such 
doubt would have existed as to the validity of this be- 
quest, had the executors not been induced to renounce 
their trust ? 

It may be safely assumed, that, under the law of this 
state, a man can give his property for the purposes ex- 
pressed in this will. There is no legal principle, that for- 
bids a man from giving to charitable institutions, either 
directly or through a trustee or agent. If he can carry this 
design out by deed or grant he can by devise. But where 
he has given a discretion to his executors, is it a discretion 
that they could have exercised so as to have devoted this 
property to the purposes set down in the will ? K the 
testator himself, when living, could have exercised that 
discretion, and could have secured the payment of these 
moneys to these societies — and about that proposition, I 
take it for granted there will be no dispute — is there any 
law to prevent the trustees, fully empowered as they are 
here, from exercising that discretion and carrying out these 
provisions ? 

It is said that the dispensary is a matter that is uncer- 
tain ; that the place is not named ; that the size of the 
building is not given ; and that if you were to take as the 
criterion of his intentions his reference to New York, his 



822 

dispensary would be big enougli to cover the wbole town 
of Kinderiiook. I think my learned friend is better ac- 
quainted with institutions of justice than of charity. A 
dispensary is a small office of some two or three rooms, 
generally fifteen or twenty feet square, where a physician 
is stationed at certain hours of the day, for the purpose of 
receiving the visits of the afflicted and giving them advice. 
This clause concerning the dispensary is, in the first place, 
to be construed according to common sense. It is not to 
be supposed, as the eloquent gentleman has imagined, that 
the testator had in his mind the establishment of institu- 
tions at St. Petersburg, or in any por-tion of Siberia. It is 
rather to be supposed that he had reference to the commu- 
nity in which he himself had practiced medicine for some 
half a century. Kinderhook is an inland town of 2,000 
inhabitants, with a growing village at Valatie, which has 
more inhabitants than the town. This testator, in the 
course of his practice as a physician, saw that a great many 
persons who were ailing in that rural district, put off ap- 
plying for a physician from an apprehension of the cost, 
until it sometimes became too late ; and there were a great 
many ailments prevalent in which a skilful physician could 
do a great deal of good at very little expense. The build- 
ing could be put up for $500, and furnished for $200 or 
$300 more. A physician could very readily be obtained 
in the country to attend it ; because, where a man is a dis- 
pensary-physician, he gets a good deal of other practice 
with it, which pays well, and it is a ready mode for 
a young physician to get into practice. In the cities, our 
physicians generally j)erform dispensary duties without 
pay. In the village of Kinderhook, the small sum of 
$200 would have been an ample annual compensation. 
It would, therefore, have required but a very small appro- 
priation of this estate. It could all have been done by 
these executors, had they exercised the slightest economy, 



823 

for two or three thousand dollars, I shall show that it can 
be done by the Court, or by sending it to a referee. It is 
not a discretion difl&cult to be exercised like that referred to 
in the cases where a chapel was to be built. It is one 
which some two or three thousand dollars would amply 
satisfy and carry out. If, as they say, a devise of this kind 
must be certain, to the last cent, there is no such thino- as 
erecting a building under a devise, where there are any 
contingencies. Here the circumstances of the testator, his 
residence, and what he required, are so plainly indicated 
that there could have been no doubt as to his intention. 
But it seems that after the will was discovered, the step-son 
thought that it ought not to be proved; and for nearly a 
year a contest was kept up before the surrogate of Colum- 
bia, for the purpose of preventing the will from being ad- 
mitted to probate. The Court will jQnd by the will when 
the testator died ; they will find that the will was not ad- 
mitted to probate until many months after his death ; they 
will see by it when it was presented to probate ; and I think 
that the inference is not a very forced one, that a sharp 
contest in relation to the competency or propriety of admit- 
ting it to be proved prevailed before the surrogate ;— suffice 
it to say, that a long interval elapsed before it was admit- 
ted to proof; and then a change had taken place in the 
whole aspect of the affair. It is no longer executors who 
are to come in and execute the will. Here is a legal in- 
strument creating trusts of great value to the community 
where the dispensary is to be established, and of great im- 
portance to the charities of the state ; and these honest 
Dutchmen, as they are called, are so appalled by the diffi- 
culties which they see in the execution of this trust that 
with one consent they throw it up. And who takes upon 
himself the administration of the will ? The widow and 
her son — the step-son of the testator. Some legacies to 
these charitable societies are paid. The legacies to the 
Qq 



324 

Tailoress's Societies are not paid — first,, because I under- 
stand it to be alleged that no such societies are to be found, 
although it seems upon the statute-book, that one year be- 
fore this will received its last codicil such a society was 
established, and there would have been no difficulty in 
finding persons who would have carried it into practical 
operation. It is plain ihat if an intimation had been given 
by the administrator with the will annexed, that $5,000 
were in readiness in his hands to be paid to any persons 
taking up this corporation and representirig it, the repre- 
sentatives of that legal body would have appeared and 
claimed the sum. On the contrary, the only legacies which 
are paid are those to the societies which are mentioned 
under the three thousand dollar class, being three in num- 
ber. During the ten j^ears elapsing after the probate of 
the will, in 1839, the administrator remained undisturbed 
in the possession of all these funds, as it appears from a 
statement made ly my learned friend who has just closed. 
There was no claim on the part of the Tailoress's Societies 
— there was no claim on the part of any societies who 
might be entitled to an interest — there was no claim on 
the part of the sister in England, or on that of her chil- 
dren. At the end of those ten years all is silent as the 
grave. Eleven, twelve, thirteen years are permitted to go 
by. At that time Mr. Jordan was attorney-generaL Mr. 
Jordan was formerly an inhabitant of Columbia, county, 
and would probably have known something about these 
things. During his administration, no attempt is made by 
the plaintiff for the purpose of obtaining a judicial con- 
struction of this will. In October, 1851. thirteen years 
after the testator's death, a suit is commenced by the plain- 
tiff, for the purpose of obtaining this judicial construction, 
or in other words, to declare these trusts invalid. In se- 
lecting the party defendants, it must be confessed that much 
skill has been shown by his legal advisers. AH the de- 



325 

fendants have a pecuniary interest tliat tlie plaintiff should 
succeed. The Bonsors in England, will, if this will is de- 
clared void and the estate goes into distribution, get half 
of the personal property, exceeding $150,000. Who gets 
the other? The widow was not living at that tinae: the 
widow had died before there was any attempt made to ob- 
tain this judicial construction. The administrator and his 
brother Thomas are entitled to whatever that widow shall 
be decreed to have under the statute of distribution, which 
is the other half of the property. They, with the people, 
are the only persons who are made parties to this suit. It 
is therefore clear, that all the parties to this suit are inte- 
rested in having these provisions declared void. The 
people are brought in, and Mr. Chatfield represented the 
people when the suit was commenced. So far as the peo- 
ple have any pecuniary interest in this matter, it was that 
the will should be declared void, because in that case they 
would be entitled, to escheat of the real estate. They are 
therefore interested in having the will declared void. 
They have, however, a deeper interest in this matter. It 
is that interest which as counsel for the Orphan Asylum 
and other charities, I am permitted by the attorney-general 
to represent here. They have an interest when any ques- 
tion touching the administration of charity funds comes up 
before their courts of justice; that they shall be adminis- 
tered so as to carry out the intentions of the testator, and 
not to promote purposes that are not entitled to the favor 
of courts of justice. 

Supposing that these executors had sought to do, what 
the administrator is in fact seeking to do — to appropriate 
the funds that were devised to them in trust for these 
charitable societies to their own benefit — would the Court 
for one moment hesitate to compel trustees thus acting to 
execute the trust? I do not intend, to go into an exami- 
nation of the cases cited by my learned associate for the 



326 

purpose of establishing the principles of law belonging to 
this case. His elaborate examination obviates that neces- 
sity. In my judgment, he fully established the following 
propositions: '1 hat accordmg to the law, as it is adminis- 
tered in this state, the office of executor is distinct and sep- 
arate from the office of trustee ; that the persons named in 
the will as executors, in the renunciation that has been ex- 
hibited to the Court, renounced only the office of executor; 
that if they had not proved that will, they still had a trust 
to perform, which they could have performed whether 
they renounced the office of executor or not; that while 
the administration is pending, even the office of executor is 
in suspense; and if the administration of the estate is not 
completed by the plaintiff, that at the termination of his 
administration, they have the right to come in and be 
sworn and act as executors, even at that late day. But the 
office of a trustee is distinct from the office of executor, and 
until they have distinctly renounced as trustees, they have 
a right to claim, that that trust shall be performed, and to 
call upon the administrator for the purpose of having it 
performed. The cases in our own courts are too decisive 
on these points to require further discussion. The trust, 
therefore, is still in force, and if the trustees will not act, 
the Court has the power to appoint trustees to carry out 
the intentions of the testator. The mode of doing that I 
shall hereafter point out. 

Let us now examine some objections brought forward by 
our opponents to this will. I may, however, first say in 
relation to the devise to purchase real estate, that the farm 
which the executors are directed to purchase for the use of 
the nephews and nieces is claimed on the other side to be 
a devise of real estate, and is to be so considered, because 
the testator directs that $6,000 should be so expended. 
That, therefore, it is void, under the construction of the 
law with regard to real estate held in trust for aliens, and 



827 

they also say that the power of alienation is suspended for 
fifteen years. If the devise was good in relation to the 
farm, and the power of alienation was suspended illegally 
by the direction given to the trustees, I understand the 
rule of law to be that the direction is held void, and the 
devise is sustained, I mention this because we have no 
wish to deprive the Bonsors of anything which the testa- 
tor intended to give them. The charitable societies and 
the people of this state desire that this bequest of $6,000 
shall be carried out if the law of the land will allow it. 

Let us now examine the objections used by the counsel 
for the plaintiff to this will. It is said that there is no 
place named where the dispensary is to be established. 
Why, in a great many cases there is no place named where 
institutions are directed to be established, and yet wills are 
again and again sustained by courts, indicating that such 
and such institutions shall be established. Where there 
are no circumstances indicating any other place, the legal 
rule is that the residence of the testator is the appropriate 
place. Another reason why the testator's residence here 
indicates the place is, that only one physician is to attend 
at this dispensary. Now, if he had designed a dispensary 
in New York, because the New York disjDensary is re- 
ferred to, or in Albany because judicious persons in Albany 
were to be consulted, more than one physician would have 
been necessary. The reason why he mentioned New 
York was that a dispensary had then been established in 
New York ; the reason why he advised consultation with 
judicious men in Albany was, that there was daily inter- 
course between Kinderhook and Albany. 

Another objection is, that no trustees are appointed. 
Why, the executors themselves are indicated as trustees, 
and if they decline or refuse to serve, the Court will ap- 
point a trustee. 

No limits are set to the funds to be appropriated to this 



828 

object ! why, the codicil limits it to one physician, and tlie 
building is a mere slight incidental expense of some five 
hundred dollars. Common sense would indicate the limit 
to be between two and three thousand dollars. It is not 
like the chapel case referred to. It is plain there from the 
language of the chancellor that a chapel was considered by 
him to be a matter ranging between five and twenty thou- 
sand pounds ; that the discretion was a matter impossible 
to be exercised, and he characterized the attempt to exer- 
cise it as ridiculous. Nothing of that kind here. 

The persons who are to be the beneficiaries of the trusts 
are utterly uncertain 1 utterly uncertain ! Of course they 
are the sick persons in that vicinity — the sick persons who 
may call there for advice. They are uncertain, but their 
class is not uncertain ; they are people who are ailing, and 
who cannot pay a physician. The rule is one of very cer- 
tain application, and it is limited to a certain class. 

Then he goes on to say there is no specific devise of the 
residue to anyone. Is that the will? "I give and' be- 
queath the residue of my estate to my executors." Is not 
that a specific devise ? Then again he says, that the exe- 
cutors in whom the discretion was lodged, have renounced. 
But does that destroy trust? Is there any such rule in law 
or equity that the renunciation of executors or trustees 
destroys the trust ? On the contrary, is it not a daily prac- 
tice of Courts to appoint trustees for the purpose of meeting 
that very objection ? The only case whereupon the renun- 
ciation of executors in whom a discretion has been lodged, 
the court will not supply the trust, is where, as in the case 
of Fontaine, referred to, the exercise of the discretion is an 
essential thing. In that case the discretion was to be ex- 
ercised after the death of the widow, and the widow out- 
lived the executor in whom the discretion was lodged ; the 
person who was to exercise the discretion died before the 
fund came into existence. The Court held that they had 



829 

no power to act — a very proper decision. But the Court 
acts constantly where the class is indicated, and the execu- 
tor has a right to discriminate among individuals in that 
class, and declines to exercise that discretion ; the Court 
then declares that it will exercise a legal discretion, and 
that that legal discretion gives the bequest to the whole 
class, to be divided equally. Cases of this kind are very 
familiar to any lawyer at all conversant with this subject- 
In some cases, where the devise has been to nephews 
and nieces of the testator, such as the executors should 
select, the courts held that the subject matter of devise 
was to be distributed equally among them, where the exe- 
cutors failed to make the selection. But the courts have 
gone even further. In some cases where the power of 
selection was given, and where the trustee neglected to 
select, and w here it was obvious, from the will itself, that 
the estate could not be divided; the court then, for the 
purpose of carrying out the intention of the testator, se- 
lected from among the class indicated by the will the indi- 
vidual who was to bo the recipient of his bounty. In the 
case of Mosely agt. Mosely, (Freeman li. 199,) the executor 
was authorized to select from the sons of the testator, one 
as the devisee of a particular estate, and it was plain that 
the testator intended that that property should not be 
divided. The trustee neglected to select the son of the 
devisee ; and to prevent the intention of the testator from 
failing, the Court selected him. In the case, too, of Rich- 
ardson agt. Chapman, (7 Br. Par. C. 318,) the trustee had 
made no selection; and, in order to execute the will, the 
Court selected from the class indicated by the will. So that 
it seems that the Court will not only declare, where there 
is a class among which the bequest is to be divided, how 
it shall be divided; but where the subject matter of the 
bequest cannot be divided, and the executor has the power 
of selection, the Court, in order to carry out the intention 
of the testator, will make a selection itself. 



330 

The conclusion is that the courts look sacredly upon the 
intention of the testator. The property belongs to him; 
the law of the land recognizes in him a right to direct 
where the property shall go at his decease. The law, in 
case of his manifesting no such intention, gives it to the 
nearest of kin ; but it also recognizes that the intention of 
the owner is to prevail ; and that even where the law of de- 
scent is to be defeated if the intention is carried out, the 
intention shall prevail. 

Where the object is charity, the Court will even go fur- 
ther to carry out the intention of the testator, and that 
without reference to the statute of Elizabeth, but according 
to the general principles of common law. 

It is objected here that this devise to establish a dispens* 
ary is void at common law. And why? Because, at 
common law, it is necessary that there should be a definite 
subject and a definite object. What is the subject here? 
Such portion of the estate as is required for the salary of 
one doctor, and the building of a small of&ce. The object 
is what ? To establish a gratuitous office for medical ad- 
vice. That is the whole matter. The subject is definite 
enough ; the object is definite enough. And in the cases 
which were referred to for the purpose of showing that 
this devise is void, one of them, in 4 Vesey, has no appli- 
eation whatever. In the case in 2d Pierre Williams, where 
the devise was " of some of my best linen," the Court held 
that the subject was too indefinite, but declared that if the 
executors had been authorized to select, the bequest would 
have been sustained. In the case of 4 Downing, the Court 
leaned against carrying out the intention because it was a 
matrimonial speculation. The testator wanted his daugh- 
ter to have as much money, and only as much money, as 
the person marrying her brought, thus affording a premium 
to rich suitors which the Court very properly refused to 
sanction. So too in the cases cited from Johnson's Et- ports. 



331 

The devise in one instance was to tlie people of Otsego, 
and in tlie other to the inhabitants of Rochester : neither 
of them corporate bodies In these cases it was held that 
the devisee was not definite. Here the devise is directlj 
to the executor. 

There has been a good deal said here about a scheme, 
which, it is contended, is never sanctioned in our courts. 
We do not think that this case requires a scheme. There 
would have been no difficulty in executing this will, had 
those executors not been induced to renounce their execu- 
torship. If this property had gone into their hands, this 
will would have been carried out. They were induced — 
how, it does not appear — but they were induced to renounce 
the execution of the will, and an individual, whose interest 
it was that these trusts should not be executed, was ap- 
pointed administrator. It is rather strange that the Bon- 
sors have made no movement for thirteen years, if they are 
in the state of indigence that they are represented to be ; that 
the first movement to question its validity should have 
come from the administrator, and that after so great a lapse 
of time. Why this long delay ? Were the administrator 
and his counsel waiting for a fortunate aspect of the polit- 
ical stars ? In the present shape of the case, we are with- 
out authentic information on this point. 

Another objection urged is, that this devise could be 
upheld in England only through the authority of the 
crown, as parens patrice. We think otherwise. I refer the 
Court especially to the authority of 1st Brown's Chancery, 
R. 12, on that point. 

We now come to what is the main point in controversy 
here. Most of the cases cited against the bequest for a 
dispensary, are cases where the statute of mortmain was 
violated in the bequest. They refer to a chapel to be 
built, or almshouses to be built, and purchases of that 
character. The second bequest, which fell with the first, 
Rr 



832 

in the case of the almshonse, was void, because the re- 
cipients of the bequest v/ere made residents of the alms- 
house, which could not be built. In the chapel case, the 
second bequest was held void, because it was for the pur- 
pose of paying chaplains to preach in the chapel, which 
could not be erected. The statute of mortmain prohibits 
land to be purchased for such purposes ; but in one case 
referred to where the building was to be repaired or added 
to, the Court rejected the alternative " added to," because 
that violated the statute of mortmain. They pronounced 
void the first part of the devise, and sustained the bequest 
because the alternative allowed them so to do, although it 
was strongly objected to. The Court, I think, will find in 
all these cases referred to, where the first bequest being 
declared void the other bequests were held as void ; that 
it was where the second bequest was accessary to and for 
the purpose of carrying out the objects contemplated in the 
first, and the first bequest being void, there was no possi- 
bility of carrying out the second. 

In one case where the statute of mortmain would have 
been violated by the first bequest, which was for the estab- 
lishment of an almshouse; the second bequest, which was of 
£7,000 for the support of persons to reside in that alms- 
house, was also declared void, as accessory to the first; 
and the third, which was for the distribution of bread to 
the poor, and not inseparably connected with the alms- 
house, was sustained. 

The next objection is, that the trust is in contravention 
of the statute of uses and trusts. I do not think it neces- 
sary to go into a very elaborate discussion of this objection, 
because that very question has recently received the adju- 
dication of the highest power in this state — the Court of 
Appeals — and until reversed by the legislature, I hold it to 
be the law of the state. That question came up in lb53, 
in the case of Williams, referred to by both the counsel, 



333 

and tlie Court tliere held that that statute referred to pri- 
vate individuals and private trusts, but not to trusts for 
charitable purposes ; and they went on, in that case, to 
give a very significant opinion in relation to the statute of 
mortmain and the statute of Elizabeth, which I shall pres- 
ently quote. With reference to this distinction, it is well 
set out in the argument that Mr. Wood made in the 
case of the Methodist Church property. Mr. Wood states 
that distinction very succinct^ and clearly in Sutton's re- 
port of that case. 

That distinguished lawyer in that argument shows that 
these two classes of trusts are eutirely different, and that 
the works treating of one class scarcely touch upon the 
other. The whole argument is well worthy of perusal for 
its clearness, logic, and brevity. It is not too much to say 
that he gives a demonstration equal to a judical decision, 
that the law of private trusts has nothing to do with chari- 
table uses. It cannot be pretended that these general words 
of the statute, having reference to a particular subject, and 
intended to regulate that particular subject, shall be con" 
strued as making an entire alteration of the law referring 
to other matters and other subjects, which are not alluded 
to in any other part of the provision referred to. 

It is again said, that the devise of the dispensary would 
be void in England by the statute of mortmain, but what 
does the fact that the statute of mortmain is repealed lead 
"US to infer? In England without the statute of mortmain 
the devise would not be void. How is it in this state where 
the statute of mortmain is repealed ? 

Now, comes the devise of the last codicil. The Court 
will advert to what I have stated, with regard to that, viz : 
" I give and bequeath all my remaining estate to my ex- 
ecutors in trust, to pay and apply the same to the treas- 
urers of these charitable societies." 

To this residuary clause the administiator sees a host of 
objections. 



334 

It is first said that it is so uncertain that it cannot he 
executed. Does my learned friend mean to say that these 
executors could not execute that clause ? Does he mean 
to say that the class among which the testator intended 
that this residuary estate should be distributed, is so inde- 
finite and uncertam, that these executors in their discretion 
cannot find out what the class is, or how it is to be divided 
among them. 

The class is definite enough, but it is said that institu- 
tions of this kind are found all over' the world — probably 
including China and Timbucto. I understand, that when 
any person lives in a state and gives to public incorporated 
societies as the particular objects of his bounty, that the 
law of the state where he is a citizen, and where he has 
lived and died, limits the societies to those whose names 
are found in the statute-book. This man died in 1888 in 
this state, and those societies which were pointed out in 
this codicil were then incorporated, and could have been 
found much easier than nephews and nieces. Those socie- 
ties are plainly indicated by the law of the state, where he 
died, where his property is and his will was proved. As 
to the class, therefore, there can be no difficulty. It is 
definite. Its number is limited by the acts of the legisla- 
ture, enacted before the will was presented to the surrogate 
for proof. His executors, to be sure, have a discretion. 
What is that discretion ? It is a discretion confined to the 
class. No more than that ; it does not go beyond that. 
The discretion in regard to the residuary part of the estate 
is that in that class where his property is to go, his execu- 
tors may discriminate among the various societies; giving 
them fall discretionary power, but so that it is to be applied 
to objects of charity. How ? All the executors have to 
do is to pay it to those societies. The executors have dis- 
cretion to determine which of the societies shall be the 
recipients of the bounty of the testator. There their dis- 



335 

cretion ends. If they refuse oir neglect to act, then the 
legal discretion comes in, and that is, that the bequest 
should be distributed equally among the class. 

Where the will gives executors power of selection, if 
they do not exercise that power; if they die without exer- 
cising it, or if no executor is named, the Court then comes 
in and makes the selection and executes the will. And 
inasmuch as the Court have that power, and as the class 
itself is clearly indicated, it takes upon itself to exercise its 
discretion according to the legal rule, and to divide it 
equaliy ; unless it is a thing that cannot be divided, and 
then the Court will go on, for the purpose of carrying out 
the will, and make the selection. 

A great deal has been said as to the inapplicability of 
this power, always exercised by the courts in England, to 
this country. The plaintiff's counsel asserts, that here there 
is no keeper of the king's conscience. That our laws do 
not favor perpetuities or accumulations of property in eccle- 
siastical or charitable hands; and the provisions of the re- 
vised statutes abolishing all except specified trusts, are 
cited as prohibiting such devises. The law of charitable 
uses, as administered in chancery, he contends, originated 
in the statute of Elizabeth. It was not known to the com- 
mon law, and the repeal of that statute has restored to that 
system the wholesome rules of political economy, by which 
property is not permitted to accumulate in particular 
hands ; but each generation is allowed to scramble for the 
common gifts bestowed by Providence upon mankind, re- 
gulated and controled solely by the law^s of appetite, skill 
and opportunity. "We shall not deny that some color is 
given to these opinions by some adjudications in this coun- 
try ; and an opinion by Judge Wright, in the Court of 
Appeals, in Yates' case, certainly savors of the teaching of 
this political economical school. 



336 

Sucli, in my humble opinion, is not the teaching of the 
common law. That system of jurisprudence, like all others 
which possess any lasting character, sprang from the hab- 
its, the morals, and religion of the people where it prevailed. 
That nation, whether Saxon or Norman, was eminently 
Christian, and the common law assumed shape and consist- 
ency under the dictates of that reHgion. You find in that 
system no encouragement to confide the whole regulation 
of society to the inexorable law of supply and demand. The 
law of political economy is not there pointed out as the only 
rule of human conduct. Christianity may boast — no Chris- 
tianity boasteth not itself; but its followers may well claim, 
that while other religions cherish and defer to those quali- 
ties which are worshipped by the mass of mankind, it is the 
characteristic of Christianity, that it devotes itself to raising 
up and cherishing the poor, the helpless, the weak, the 
outcast, and down-trodden children of humanity. 

It addresses them in words of consolation and encourage- 
ment — it cheers them with the promise of another and a 
better world. 

To the rich and powerful it speaks with a voice of warn- 
ing. It exhorts them to devote their worldly goods to al- 
leviate the sufferings of the poor; and sometimes with an 
indignant scourge, it shows how incompatible the acquisi- 
tion of money is with the duties of religion. That religion 
lies at the foundation of the common law. It has grown up 
and taken form under its inspiration. To its promptings 
do we owe it, that long anterior to the accession of the Tu- 
dors, or the Plantagenets, little funds of charity, local insti- 
tutions, were established throughout England for the poor, 
whether wayfarers or at home ; places where the hungry 
and destitute could find temporary relief. Hence the foun- 
dations for hospitals, for learning, benevolence, the promo- 
tion of village sports and rural customs that have obtained 
for that island the title of " Merrie England." 



837 

These institutions were in existence long before the 
reign of Elizabeth, and when the monasteries were broken 
up, bj whose occupants many of these charitable trusts 
had been executed, the statute of Elizabeth was enacted, 
creating commissioners to inquire into these trusts and 
provide for their future execution. This, however, was a 
special remedy, and intended to meet a particular state of 
affairs. It had but little to do with the ordinary jurisdic- 
tion of the Court of Chancery, which, long before and since, 
and at all times, has lent its authority to enforce charitable 
trusts. This question, however, has lately received a judi- 
cial decision from the highest judicial tribunal in this state 
— the Court of Appeals — which has, I trust, for ever put an 
end to this attempt to pervert the charitable teachings of 
the common law, and established the authority of our courts 
over charitable trusts upon a sure foundation. 

In Williams' case, decided in December, 1853, that Court 
came to these conclusions : 

1. That the authority of our courts over charitable 
trusts, existed at common law anterior to the statute of 
Elizabeth. 

2. That our Revised Statutes prohibiting perpetuities 
and trusts referred only to private, and not to charitable 
trusts. 

3. That in the last class of cases the Court will appoint 
trustees to carry into effect the benevolent intentions of a 
testator, where the executors fail to peform the trust. 

In commenting upon the repeal, by our legislature, of 
the statute of mortmain. Judge Denio, who delivered the 
opinion of the Court, remarked that by this repeal it was 
plainly intended to promote the establishment of charitable 
funds. That statute prohibited the gift of lands to such 
purposes, because large appropriations of real estate had 
already been made for that purpose, and the noble chari- 
table foundations in that kingdom were adequately en- 



838 

dowed. Here it was just the contrary. Our charitable in. 
stitutions vrere yet to be established, and the legislature, by 
repealing that statute, intended to remove a restraint which 
was not necessary here. 

Oar orphan asylums, the institutions for the relief of in- 
digent females, and widows with small children, have not 
means sufficient for the wants of the community. They 
require to be cherished rather than restrained. The state 
feels that these institutions are actively performing one of 
the great duties of government, and Ils laws were not in- 
tended, and will not be construed to thwart the benevolent 
designs of those who would sustain them. 

The chief question here is about the residuary bequest. 
If the dispensary clause cannot be executed, the fund falls 
into the residuary bequest. It is a legacy of personal 
property, and the law is clear, that while the devise of real 
estates inures to the benefit of the heir-at-law, one of per- 
sonal property goes to the residuary legatee. Chancellor 
Walworth, in the case of the Reformed Dutch Church, in 
6 Paige, examines the question at length, and the distinc- 
tion is clearly recognized. The issue, therefore, is between 
these charities and the administrator, who has assumed the 
custody of the will. Shall the intentions of the testator be 
carried out in their behalf, or shall they be defeated in favor 
of one who is a stranger to his blood. 

His intentions are too clear to be doubted. The execu- 
tors could comprehend them, the Court can understand 
them, and the plaintiff ought not to be permitted to inter- 
pose further obstacles to the performance of the trusts 
pointed out in the will. 



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